Randstad Pty Ltd v Vardareff - [2023] NSWPICPD 78

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Randstad Pty Ltd v Vardareff [2023] NSWPICPD 78
APPELLANT:	Randstad Pty Ltd
RESPONDENT:	lgnat Vardareff
INSURER:	Randstad Holdings Pty Ltd
FILE NUMBER:	A1-W6525/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	8 December 2023
ORDERS MADE ON APPEAL:	1. The Member’s determination is revoked in part and I make a new determination substituting in order 1 for the figure $1,190 the figure $155. So that order 1 now reads: “The applicant has no current capacity for work from 3 November 2021 resulting from injury he sustained to his low back and left shoulder on 24 May 2021 in the course of his employment with the respondent. The applicant’s pre-injury average weekly earnings is $155 (subject to indexation). The applicant has entitlement to weekly compensation payable under s 37 of the Workers Compensation Act 1987 from 3 November 2021 on the basis that the applicant has had no current capacity for work and the respondent is to pay the applicant weekly compensation accordingly.”
CATCHWORDS:	WORKERS COMPENSATION – weekly compensation – Pre-injury average weekly earnings – short term workers – clauses 2 and 4 of Schedule 3 to the Workers Compensation Act 1987 – clauses 8AB and 8F of the Workers Compensation Regulation 2016
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Ainsworth, solicitor
Hall & Wilcox
Respondent:
Mr J Malouf, counsel
Gerard Malouf & Partners
DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF MEMBER’S DECISION:	22 December 2022

INTRODUCTION

Mr Vardareff (the respondent to the appeal) sustained injury to the left shoulder and low back on 24 May 2021. At that time he was working for Randstad Pty Limited (the appellant) as a labourer.
The injury was sustained when he and a fellow worker were carrying a timber frame. The fellow worker lost control of the frame and Mr Vardareff was required to bear the whole weight of the frame.
The matter came on for hearing on 22 of December 2022.
The Member made a determination in favour of Mr Vardareff as follows:
“1. The [respondent] has had no current capacity for work from 3 November 2021 resulting from injury he sustained to his low back and left shoulder on 24 May 2021 in the course of his employment with the [appellant]. The [respondent’s] PIAWE is $1,190 (subject to indexation). The [respondent] has entitlement to weekly compensation payable under s 37 of the Workers Compensation Act 1987 from 3 November 2021 on the basis the [respondent] has had no current capacity for work and the [appellant] is to pay the [respondent] weekly compensation accordingly.
2. The [respondent] has entitlement to medical and related treatment expenses payable under s 60 of the Workers Compensation Act 1987 resulting from injury sustained to his low back and left shoulder on 24 May 2021 in the course of his employment with the [appellant] and the [appellant] is [to] pay the [respondent’s] medical and related treatment expenses accordingly (including $131.80 relevant to the specialist appointment with Associate Professor Jaeger).”
The appeal challenges the Member’s determination that the respondent’s PIAWE was $1,190 subject to indexation. The appellant submits that the Member was required to apply clause 8F(2) of the Workers Compensation Regulation 2016 (the Regulation).
For the reasons that follow, the appeal is allowed. The worker’s continuing entitlement is $155 per week.

THE MEMBER’S STATEMENT OF REASONS

The Member delivered an oral Statement of Reasons on 21 December 2022.
She identified the issues for determination as follows:
“(a)    does Mr Vardareff suffer an incapacity for work resulting from the injury he sustained on 24 May 2021 in the course of his employment with Randstad, as alleged;
(b)     Mr Vardareff’s pre-injury average weekly earnings – … PIAWE; and
(c)     does Mr Vardareff require medical and related treatment for the injury he sustained on 24 May 2021 in the course of his employment with Randstad.”[1]
[1] Transcript of oral reasons (T), T2.22–30.
There is no challenge to the Member’s determination with respect to issues (a) and (c).
The Member determined that from 3 November 2021 Mr Vardareff had no current work capacity. The dispositive findings are at page 16 of the transcript of reasons:
“Following review of the evidence as a whole and following careful consideration of counsels’ submissions, having particular regard to the support afforded Mr Vardareff by his long-term treating General Practitioner, Dr Yarrow, and also Dr Ho in his capacity as independent medical examiner, I accept Mr Vardareff has discharged the onus of proof required of him, and I accept Mr Vardareff has had no current work capacity since 3 November 2021, as alleged. I prefer the opinions of Dr Yarrow and Dr Ho to that offered by [Associate Professor] Miniter, as Dr Yarrow is Mr Vardareff’s long term treating general practitioner who has been involved in both Mr Vardareff’s previous and current low back care, and has had the opportunity to review Mr Vardareff on a number of occasions during the period of his claim for weekly compensation and Dr Ho too has had the opportunity to assess Mr Vardareff face to face on occasion during the period of his claim for weekly compensation, whereas [Associate Professor] Miniter assessed Mr Vardareff by telehealth on occasions which predate the period of Mr Vardareff’s claim for weekly compensation.
This said, I am mindful [Associate Professor] Miniter accepted on last assessment that there had been no improvement in Mr Vardareff’s functional capacity, despite treatment, and conceded it was ‘highly unlikely’ Mr Vardareff would return to work.”[2]
[2] T16.17–17.8.
The Member determined that the respondent was entitled to medical and related treatment expenses:
“Following review of the evidence as a whole and careful consideration of counsel’s submissions, having particular regard to comment made by his treating general practitioner Dr Yarrow, and his then treating physiotherapist at Phytness Health Care, recommendation by his then treating neurosurgeon Dr Cherukuri, and opinion provided by Dr Ho in his capacity as independent medical examiner, I accept Mr Vardareff has discharged the onus of proof required of him, and I accept Mr Vardareff has an entitlement to reasonably necessary medical and related treatment for the injuries he sustained to his lower back and left shoulder on 24 May 2021 in the course of his employment with Randstad.”[3]
[3] T25.18–30.
The Member’s preference for the opinion of Dr Ho over that of Associate Professor Miniter was because Dr Ho had had an opportunity to assess Mr Vardareff at a more current time to Associate Professor Miniter. Dr Ho regarded Mr Vardareff as more appropriately continuing with conservative treatment.
The appeal concerns the Member’s determination of the PIAWE at $1,190.
The Member referred to Mr Vardareff’s two statements. She recorded that Mr Vardareff had been on Randstad’s books for a period of years prior to his injury but had not undertaken any work with Randstad for about 12 months prior to the incident occurring on 24 May 2021.
The uncontradicted evidence was that Mr Vardareff had been approached by Randstad to perform a job at Crown Street, Wollongong. He was told that the job would be by way of night shift and that it would be completed within 5 days. At the completion of 5 days, Mr Vardareff was asked to work over the weekend and perform a further 4-hour shift on the evening of Monday, 24 May 2021. It was during the course of that shift that Mr Vardareff sustained injury.
Mr Vardareff submitted a claim for compensation.
On 8 September 2021 Randstad wrote to Mr Vardareff. The critical part of the letter was as follows:
“We refer to earlier correspondence dated 3/6/2021 in which Randstad Pty Ltd advised you of your entitlement to weekly compensation when you require time off work as a result of your injury. We advised you that your pre-injury average weekly earnings (PIAWE) was $1,190 and for the first 13 weeks your entitlement was 95% of your PIAWE.
As at 25/82021 you had received 13 weeks of weekly compensation, after this your entitlement to weekly compensation changes. Section 37 of the Workers Compensation Act 1987 deals with your entitlement to weekly compensation during the second entitlement period.”[4]
[4] T5.18–30; Application to Resolve a Dispute, p 315.
The Member analysed the worker’s payslips for the period 25 May 2020 to 24 May 2021. She said that analysis demonstrated that between 24 August 2020 and 30 August 2020, Mr Vardareff earned $1,325.61. Between 31 August 2020 and 6 September 2020, Mr Vardareff earned $637.49, and between 19 October 2020 and 25 October 2020, Mr Vardareff earned $365.63.”[5]
[5] T6.17–21.
The Member referred to the worker’s income tax returns for the financial years 2020, 2021 and 2022. The income tax return for 2020 showed Mr Vardareff to be employed by various employers and to have recovered a total income from employment of $44,762, his main occupation being as traffic controller.
With respect to the earnings for the financial years ended 2021 and 2022, Mr Vardareff earned $14,315 in 2021 from two employers including Randstad. However, a significant portion of the declared earnings were by way of weekly compensation payments.
For the financial year 2022 Mr Vardareff’s total income from employment with Randstad was $19,354, all of which appeared to have come from weekly compensation.
The Notices of Assessment relevant to Mr Vardareff’s earnings were not regarded by the Member as of assistance in ascertaining Mr Vardareff’s income from employment during the relevant period. Likewise with respect to the bank records, these did not appear to provide assistance in calculating Mr Vardareff’s PIAWE.
The Member said this:
“A summary of Mr Vardareff’s wages and hours with Randstad during the period 15March 2020 and 7November 2021 is in evidence. The schedule relevantly demonstrates, during the week ending 13 September 2020, Mr Vardareff worked with BlueScope Wollongong Venture earning [$]868. During the two-week period ending 15 November 2020, Mr Vardareff worked with Autocare, earning $414 each week, and during the week ending 23 May 2021, Mr Vardareff worked with Guardian Built, earning $1,529, and during the week ending 30 May 2021, being the week during which Mr Vardareff sustained injury, Mr Vardareff earned $157.”[6]
[6] T9.14–24.
The Member said:
“It is common ground that at the time Mr Vardareff sustained injury on 24 May 2021 in the course of his employment with Randstad, he had been working with Randstad for an expected period of five days, and on request had returned to work for one further day, being the day he sustained injury. It is apparently also common ground that Mr Vardareff is a ‘short term worker’ for the purposes of PIAWE calculation, and that clause 4 of Schedule 3 of the 1987 Act has application to his claim.”[7]
[7] T17.13–24.
Thereafter the Member set out cl 2 of Sch 3 of the Workers Compensation Act 1987 (the 1987 Act); cl 4 of Sch 3 of the 1987 Act and cl 8F of Div 3 of the Regulation. She also referred to cl 8AB, noting that it relevantly prescribed a minimum amount for an injured worker’s pre-injury average weekly earnings of $155.
The Member said this:
“While there is no evidence before me relevant to any contract of employment made before the date of injury, any award relating to Mr Vardareff’s employment with Randstad or the average weekly amount earned during the 52 weeks before Mr Vardareff sustained injury on 24 May 2021 by other persons for the performance of similar work as Mr Vardareff, there is evidence of correspondence dated 8 September 2021 addressed to Mr Vardareff from Randstad that confirmed calculation of his PIAWE at $1,190, and there is evidence of earnings received by Mr Vardareff during the 52-week period before he sustained injury on 24 May 2021.”[8]
[8] T21.1–13.
The Member held that the letter of 8 September 2021 was written by Randstad in its capacity as the employer, notwithstanding that Randstad was also a self-insurer.
The Member concluded that the correspondence of 8 September 2021 amounted to an ‘agreement’ for the purpose of cl 8F “in that it is evident from the correspondence that Randstad had previously advised Mr Vardareff under cover of correspondence dated 3 June 2021 that his PIAWE was $1,190, which was not challenged by Mr Vardareff, and Mr Vardareff has been paid weekly compensation by Randstad under section 36 and section 37 of the 1987 Act until his claim was disputed.”[9]
[9] T22.6–12.
The Member supported her conclusion in this regard by the following:
“There is no doubt there is a meeting of the minds by Randstad and Mr Vardareff as to Mr Vardareff’s PIAWE, which is reportedly reflected in Randstad’s correspondence addressed to Mr Vardareff dated 3 June 2021, and reflected in Randstad’s correspondence addressed to Mr Vardareff dated 8 September 2021, which Randstad acted on with payment of weekly compensation to Mr Vardareff under section 36 and section 37 of the 1987 Act over a period of some five months before his claim was disputed.”[10]
[10] T22.12–21.
As to the 52 weeks of earnings between 24 May 2020 and 23 May 2021, the Member held that those earnings were minimal in that the payslips demonstrated gross earnings of $2,328.73, the bank statements demonstrated net earnings of $7,510.51. The summary of wages and hours for 2020 prepared by Randstad showed $3,225 in earnings. The Member said:
“At best, the evidence demonstrates that during the period of 52 weeks before he sustained injury on 24 May 2021, Mr Vardareff received earnings of $7,510.51.”[11]
[11] T22.33–23.2.
Dispositive of the determination on this issue was the Member’s conclusion that there was an agreement between Randstad and Mr Vardareff that his PIAWE is $1,190, evidenced in the correspondence dated 8 September 2021.[12] The Member held that Mr Vardareff had discharged the onus of proof on this point.[13]
[12] T23.16–18.
[13] T23.23–29.

GROUNDS OF APPEAL

The appellant submits that the Member erred in determining that the respondent’s PIAWE was $1,190 subject to indexation.
The appellant relies on three grounds of appeal, namely:
(a) The Member made an error of law in respect of the construction of clause 4 of Schedule 3 of the 1987 Act and cl 8F of the Regulation (Ground 1).
(b) The Member made an error of fact in respect of the letter dated 8 September 2021 (Ground 2).
(c) The Member made an error of fact by taking into account some irrelevant matter, being the letter of 8 September 2021, and by giving insufficient weight to the evidence of earnings (Ground 3).

THRESHOLD MATTERS

The Certificate of Determination issued on 22 December 2022. The appeal was brought within time as required by s 352(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The amount involved is $1,190 gross per week commencing on 3 November 2021. Plainly, the monetary threshold imposed by s 352(3) of the 1998 Act is satisfied.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

The jurisdiction provided by subsection 352(5) of the 1998 Act is:
“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 a new hearing.”
The jurisdiction is to correct errors in the exercise of fact, law or discretion and not to review the Member’s determination. The jurisdiction is not engaged except in so far as there is demonstrated to be an error of fact, law or discretion.

ON THE PAPERS

The appellant does not request an opportunity to make oral submissions and submits that the appeal is capable of being determined on the papers. The respondent does not request an oral hearing.
Section 52(3) of the Personal Injury Commission Act 2020 provides that:
“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.”
Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so the appeal can be determined on the papers without holding any formal hearing.
I am so satisfied and propose to determine the matter “on the papers” without holding any conference or formal hearing.

GROUND 1 – The Member made an error of law in respect to the construction of clause 4 of Schedule 3 of the 1987 Act and cl 8F of the Regulation

GROUND 3 – The Member made an error of fact by taking into account some irrelevant matter being the letter of 8 September 2021, and by giving insufficient weight to the evidence of earnings

It is convenient to deal with these two grounds of appeal together.

Appellant’s submissions – Ground 1

The appellant submits that the Member was in error in considering the word “agreement” where it appears in cl 8F of the Regulation in isolation. A proper consideration of the meaning of the word in cl 8F should have been informed by the context and purpose of the provision having regard to the immediately surrounding text and provisions.
The appellant submits:
“In this regard, it is submitted that the term ‘award’ would ordinarily refer to the modern award which outlines the minimum rates of pay and conditions of employment. Similarly, the [appellant] submits that the term ‘agreement’ would necessarily refer to a document between a worker and employer setting out agreed employment conditions. An example of such an ‘agreement’ is a registered agreement, which includes enterprise agreements, collective agreements, greenfields agreements, certified agreements, Australian workplace agreements (AWA) and individual transitional employment agreements. There was no such agreement in evidence.”[14]
[14] Appellant’s submissions, [29].
The appellant further submits that the words “any award or agreement relating to employment” contemplates an agreement entered into by a worker and employer prior to the commencement of employment. It submits that there is no such agreement in evidence.
The appellant submits that had the Member construed the term “agreement” in the above manner she could not have reached the conclusion that the letter of 8 September 2021, dated after the commencement of employment and injury, constituted an agreement for the purpose of cl 8F(1) of the Regulation. Rather, it should have been accepted that there was no such agreement in evidence.
If an agreement was to be construed in the manner interpreted by the Member, the appellant submits that an insurer would be prejudiced by any correspondence issued to a worker identifying either a wholly incorrect PIAWE or interim PIAWE in circumstances in which there was insufficient evidence to accurately assess or determine the amount. For these same reasons the appellant submits that the conduct of paying weekly compensation to the respondent based on a PIAWE of $1,190 cannot amount to an agreement relating to employment.

Appellant’s submissions – Ground 3

The appellant repeats its submission that the letter of 8 September 2021 issued by it could not constitute an agreement.
The appellant submits that the Member erroneously placed emphasis on the correspondence for the purpose of assessing what the respondent could reasonably have been expected to have earned in employment, but for the injury, during the 52-week period after the injury.
The appellant submits the respondent’s pattern of earnings was evidence as to what the respondent was likely to earn prospectively with the appellant. In that regard the appellant observes that the respondent was engaged as a casual employee with Randstad and was injured on the first day (sic) that he worked for the appellant.

The appellant further submits that the Member failed to give adequate reasons as to why she did not consider that the evidence of earnings reasonably assisted her in determining what the respondent could reasonably have expected to earn in employment but for the injury during the period of 52 weeks after the injury. Instead, so the appellant submits, the Member acknowledges that it was evident that the earnings received by Mr Vardareff before he sustained injury on 24 May 2021 were “minimal”. The appellant submits that the Member was also able to calculate using the financial records, that the respondent received earnings of $7,510.51 for the 52 weeks prior to sustaining the injury. The appellant submits that for the Member to form these conclusions it cannot be said that the records did not reasonably assist.
The appellant further submits that the Member, despite having found that the respondent earned on average $144.43 per week prior to the injury, concluded that he could have expected to earn $1,190 per week in the following 52 weeks in casual employment, which was over 8 times more than the previous year. The appellant submits “the Member could not have been comfortably satisfied on the evidence of such prospective earnings in the absence of any satisfactory probative evidence to that effect.”[15]
[15] Appellant’s submissions, [51].
The reference to the known effect of the COVID-19 pandemic “should not preclude a Member from assessing a worker’s PIAWE based on [cl] 8F(1)(c) of the Regulations and, further, … the Member had before her the [respondent’s] financial records for a period of years prior to COVID-19.” The appellant also observes that “there was no evidence adduced as to the effect of COVID-19 or the government response on the industry or industries in which the [respondent] might have worked for the [appellant].”[16]
[16] Appellant’s submissions, [52].
The appellant submits:
“If it was the case that the Member was also not reasonably assisted by the evidence of past earnings, the Member ought to have adopted the cascading test by applying subsection (2). In this regard, there was no such evidence of earnings from ‘other persons for the performance of similar work as the worker (whether or not with the worker’s employer)’. As such the [appellant] submits that the [respondent] failed to discharge its onus.”[17]
[17] Appellant’s submissions, [54].

Respondent’s submissions – Ground 1

The respondent sets out extracts from authorities Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT);[18] Certain Lloyd’s Underwriters Subscribing to Contract Number IH00IIQS v Cross[19] and Project Blue Sky Inc v Australian Broadcasting Authority.[20] Those principles of construction are well understood and need not be repeated at this time.
[18] [2009] HCA 41, [47].
[19] [2012] HCA 56, [24].
[20] [1998] HCA 28, [69]–[71].
The respondent submits that the “Member was perfectly entitled to and, indeed was required to, take into account any agreement (relevantly) relating to the employment.”[21]
[21] Respondent’s submissions, [17].
The respondent submits that the use of the terms “any agreement relating to the employment” are critical and meaningful and that they should be given their ordinary meanings.
The respondent says:
“The Appellant submits, firstly, that the word ‘agreement’ should have some limited scope in that it should only be agreements spelling out conditions of employment – such as official registered agreements.
In reply, the Worker makes the obvious point that nowhere in the legislation is the term ‘agreement’ so limited and to force such a definition would be incongruous with the actual words. In other words, there is simply no support for the Appellant’s contention to apply such a narrow definition.”[22]
[22] Respondent’s submissions, [21]–[22].
The respondent says that the appellant’s submission, that because cl 8F(1)(a) and (c) refer to documents in existence prior to employment that cl 8F(1)(b) should be similarly limited despite the fact that such words are not used at all, is an entirely unpersuasive submission that ignores the actual words of the Regulation. The respondent submits that precisely the contrary approach should be taken. If it was the intention of the legislature that only agreement prior to employment should be considered, then appropriate words should have been included, as they clearly have been in cl 8F(1)(a) and(c).
The respondent rejects the appellant’s implicit submission that if the letter of 8 September 2021 was to be considered an agreement this would prejudice insurers, on the basis that the submission is a policy submission without actual identification of what particular prejudice there was to the appellant in the particular case.
The respondent submits that that submission was never made to the Member and there was no evidence in relation to it. In any event, the respondent submits that the letter of 8 September 2021 is clear in its words.
The respondent submits that the appellant formed an opinion on 3 June 2021 and 8 September 2021 that the worker’s PIAWE was $1,190 and communicated this to the worker twice. It is submitted that there is no evidence:
(a)    that the appellant was incorrect in its calculation;
(b)    that the appellant was applying an interim PIAWE, nor
(c)    that the appellant had insufficient evidence to determine the PIAWE at the time of the two letters.
On the basis of those submissions, the respondent submits that the appellant’s submission that the Member made an error of law by incorrectly interpreting cl 8F of the Regulation should be rejected.

Respondent’s submissions – Ground 3

The respondent repeats its submission that the appellant’s submission that the letter was not a relevant piece of evidence should be rejected outright.
The respondent submits that the Member gave clear reasons. She took into account what the worker earned in the 52 weeks prior. She made it plain that the prior earnings did not assist her because of the known effect of COVID-19 on the workforce between March 2020 and September 2020 and this is a recognised provision made in the Regulation.
For that reason, in her discretion the Member decided that the agreement in the letter of 8September 2021 was of greater assistance, given that there was evidence of an agreement. The appellant has failed to show why that was erroneous.

Consideration

Schedule 3 to the 1987 Act provides in clauses 2(4) and 4 as follows:
“2     Meaning of ‘pre-injury average weekly earnings’
...
(4)     If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers including part-time and fulltime workers.
…
4      Pre-injury average weekly earnings for short-term workers
(1)     If, at the time of the injury, the injured worker had been continuously employed in employment for less than 4 weeks, the pre-injury average weekly earnings in relation to the worker may be calculated having regard to the weekly average of the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.
(2)     The regulations may make provision for the matters to be taken into account for the purposes of determining the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.”
Part 4 of the Regulation contains the following relevant provisions:
“8AB Minimum amount of pre-injury average weekly earnings—Schedule 3, clause 2(4)
For the purposes of clause 2(4) of Schedule 3 to the 1987 Act, the amount of $155 is prescribed as the minimum amount applicable to a worker.”
“8F Pre-injury average weekly earnings for short-term workers—Schedule 3, clause 4(2) of 1987 Act
(1) In determining the earnings that a worker could reasonably have been expected to have earned in employment for the purposes of clause 4(1) of Schedule 3 to the 1987 Act, the following matters are to be taken into account—
(a) any contract of employment made before the date of the injury,
(b) any award or agreement relating to the employment,
(c) any hours worked or earnings received by the worker during the period of 52 weeks before the injury.
(2) If the consideration of those matters does not reasonably assist in determining the earnings that the worker could reasonably have been expected to have earned in the employment, the earnings are to be determined by having regard to the average weekly amount earned during the period of 52 weeks before the injury by other persons for the performance of similar work as the worker (whether or not with the worker’s employer).”
The Member held that there was no evidence of any contract of employment made before the date of injury, of any award relating to Mr Vardareff’s employment with Randstad, or of the average weekly amount earned during the 52 weeks before Mr Vardareff sustained his injury by other persons for the performance of similar work as Mr Vardareff. Those findings excluded clauses 8F(1)(a) and (b) to the extent of any award and cl 8F(2) as being relevant to determination of Mr Vardareff’s PIAWE.
The Member said that the correspondence of 8 September 2021 to Mr Vardareff from Randstad “confirmed calculation of his PIAWE at $1,190”.[23] She said there was evidence of earnings received by Mr Vardareff during the 52-week period before he sustained injury on 24May 2021.[24]
[23] T21.9.
[24] T22.33–23.2.
The latter finding in my view satisfies cl 8F(1)(c). In cl 8F(1) the expression “the following matters are to be taken into account” is a mandatory direction that such of those matters (a) to (c) as apply “are to be taken into account”.[25]
[25] Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589, [70]–[73].
In my view, the operation of clause 8F required the Member to take into account the earnings received by Mr Vardareff during the period of 52 weeks before the injury “in determining the earnings that a worker could reasonably have been expected to have earned in employment for the purpose of clause 4(1) of Schedule 3 to the 1987 Act”. The Member concluded that Mr Vardareff received during that period $7,510.51.[26] It seems to me that on the basis of the operation of cl 8F(1)(c), Mr Vardareff’s PIAWE was relevantly $144.30 unless that calculation could be displaced by some other matter specified in cl 8F(1) or clause 2(4) of Schedule 3 of the 1987 Act.
[26] T22.34–23.1.
The Member determined that her calculation of the respondent’s earnings during the 52-week period before the injury was displaced by her construction of the letter of 8September 2021 which she found “amounts to an ‘agreement’ for the purposes of Regulation 8F, in that it is evident from the correspondence that Randstad had previously advised Mr Vardareff under cover of correspondence dated 3 June 2021 that his PIAWE was $1,190, which was not challenged by Mr Vardareff, and Mr Vardareff has been paid weekly compensation by Randstad under section 36 and section 37 of the 1987 Act until his claim was disputed.”[27]
[27] T22.5–12.
The letter of 3 June 2021 is not in evidence.
The letter of 8September 2021 does not in my view evidence any agreement between Randstad and Mr Vardareff. It merely records that on 3 June 2021 “Randstad Pty Limited advised” Mr Vardareff of his entitlement to weekly compensation and that the pre-injury average weekly earnings were $1,190.
The letter of 3June 2021 may have contained an agreement between Randstad and Mr Vardareff. I must say I think it unlikely but, be that as it may, in my view the letter of 8September 2021 does not amount to an agreement nor does it evidence a pre-existing agreement. The text of the letter simply does not support the conclusion by the Member that the “correspondence amounts to an ‘agreement’ for the purpose of Regulation (8F(1)(b))”.
Of course it may be that the letter of 8 September 2021 amounted to an admission. However, the case was not conducted on this basis and this need not be considered further.
In my view, cl 8F(1)(c) applied so that subject to Clause 2(4) of the Schedule the PIAWE was $144.43.
However, because the PIAWE calculated under clause 8F is less than the minimum amount prescribed by cl 8AB Clause 2(4) of Schedule 3 applies and the PIAWE to be taken to be the prescribed minimum amount of $155.
In my view Grounds 1 and 3 of the appeal succeed.

GROUND 2 – The Member made an error of fact in respect of the letter dated 8 September 2021

Appellant’s submissions – Ground 2

The appellant submits that “[i]t is clear for several reasons that the letter of 8September 2021 was issued by the [appellant] in its capacity as the workers compensation insurer managing the [respondent’s] injury sustained on 24 May 2021, rather than as the [respondent’s] employer.”[28]
[28] Appellant’s submissions, [35].
The submission is further supported “for emphasis” by the submission that the correspondence was issued after the respondent sustained his injury and after he stopped working (emphasis in the submission). The appellant submits that the letter referenced the injury and “was solely in reference to a claim for compensation in respect of the injury”. The appellant sets forth particulars with respect to the injury contained within the letter.[29]
[29] Appellant’s submissions, [36].
The appellant submits that because the letter was authored and signed off as “Case Manager” appearing under the signature box, the author did “not have the capacity to agree to the [respondent’s] rate of pay on behalf of the employer.”[30]
[30] Appellant’s submissions, [37].
The appellant submits that the letter relates to the respondent’s statutory entitlement to weekly payments of compensation in respect of injury and is not referring to the status of the respondent’s employment.
Further, the appellant submits that the failure of the respondent worker to challenge an assessment of the PIAWE does not constitute an acceptance of an offer. The appellant submits:
“In this case, there was no consideration flowing from the [respondent] to the [appellant]. This highlights that it was not an agreement regarding employment as the [respondent] was not selling his labour to the [appellant].”[31]
[31] Appellant’s submissions, [39].
The appellant submits that the Member made an error of fact in concluding that the letter of 8September 2021 was an agreement relating (or relevant) to employment for the purpose of cl 8F(1)(b) of the Regulation.

Respondent’s submissions – Ground 2

The respondent submits “the letter of 8 September 2021 was, clearly, related to his employment. This is obvious.”[32]
[32] Respondent’s submissions, [33].
The respondent submits:
“It cannot be denied that what the worker was earning, on average, prior to his injury must be an issued [sic] relating to his employment.
Given this, the fact that the letter post-dates the Worker’s injury is entirely irrelevant.
Again, Rule 8F(1)(b) dictates no temporal limit on any agreement to be considered.”[33]
[33] Respondent’s submissions, [35]–[37].
The respondent submits that the appellant admitted no evidence to prove that Randstad Pty Limited sent the letter in some capacity distinct from its capacity as an employer. The respondent says that the appellant’s argument that the document relates to workers compensation and not to the worker’s employment is “clearly incorrect and unpersuasive.”[34]
[34] Respondent’s submissions, [38]–[39].
Finally, in answer to the appellant’s argument that the failure of the worker to challenge an assessment does not constitute an acceptance of an offer, the respondent submits that:
“an ‘agreement’ for the purposes of Rule 8F does not require a contractual agreement with consideration. This would be absurd and incongruent with the words used – Rule 8F(1)(b) refers to an agreement, not a contract. What is important is that the Appellant determined the PIAWE, communicated this with the Worker and paid him accordingly. He accepted that payment. This, for all intents and purposes, is an agreement within the meaning of Rule 8F.”[35]
[35] Respondent’s submissions, [40].

Consideration

The Member rejected the submission that the letter of 8 September 2021 was written in Randstad’s capacity as a self-insurer rather than in its capacity as an employer. She said as the ABN for Randstad reflected in this correspondence is the same as that reflected in Mr Vardareff’s pay or in his income tax returns, she was of the view that this correspondence was forwarded to Mr Vardareff by Randstad in Randstad’s capacity as the employer.
That is self-evidently correct. I do not see how it can be said that a self-insurer under Div 5 of Pt 7 of the 1987 Act can purport to act in different capacities. What it does, it does on behalf of that corporate entity which is both the employer and the licence holder with respect to self-insurance.
I have said above that the Member’s interpretation of the letter of 8 September 2021 as containing a relevant agreement was in error. However the Member was not in error in her characterisation of the letter as being issued by the appellant in its capacity as an employer. In my view, the appellant was both Mr Vardareff’s employer and a self-insurer.
In my view Ground 2 of the appeal is not made out.

CONCLUSION

The Member’s determination is revoked in part and I make a new determination substituting in order 1 for the figure $1,190 the figure $155. So that order 1 now reads:
“The applicant has no current capacity for work from 3 November 2021 resulting from injury he sustained to his low back and left shoulder on 24 May 2021 in the course of his employment with the respondent. The applicant’s pre-injury average weekly earnings is $155 (subject to indexation). The applicant has entitlement to weekly compensation payable under s 37 of the Workers Compensation Act1987 from 3 November 2021 on the basis that the applicant has had no current capacity for work and the respondent is to pay the applicant weekly compensation accordingly.”

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

8 December 2023