Roe v Mackillop Family Services Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roe v Mackillop Family Services Ltd [2025] NSWPIC 438
APPLICANT:	Roseanne Roe
RESPONDENT:	Mackillop Family Services Limited
MEMBER:	Karen Garner
DATE OF DECISION:	27 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury; claim in respect of underpayment of weekly compensation; whether there has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant; by virtue of which clause 8C(1) of the Workers Compensation Regulations 2016 (2016 Regulation) should operate to determine the applicant’s pre-injury average weekly earnings for the purposes of calculating the applicant’s entitlement to weekly compensation pursuant to sections 36 and 37; Held – there has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant; clause 8C(1) of the 2016 Regulation should operate to determine the applicant’s pre-injury average weekly earnings; the applicant has been underpaid her entitlements to weekly compensation pursuant to sections 36 and 37; the respondent ordered to pay the applicant the balance of unpaid weekly compensation pursuant to sections 36 and 37.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. There has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant, by virtue of which, clause 8C(1) of the Workers Compensation Regulations 2016 should operate to determine the applicant’s pre-injury average weekly earnings for the purposes of calculating the applicant’s entitlement to weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant has been underpaid her entitlements to weekly compensation pursuant to ss 36 and 37 of the 1987 Act. The Personal Injury Commission orders: 3. The respondent to pay the applicant the amount of $2,936.83 being the total balance of unpaid weekly compensation in respect of the period from 30 December 2019 to 29 March 2020, pursuant to ss 33 and 36 of 1987 Act. 4. The respondent to pay the applicant the amount of $25,380.24 being the total balance of unpaid weekly compensation in respect of the period from 30 March 2020 to 20 July 2025, pursuant to ss 33 and 37 of 1987 Act. 5. The respondent to pay the applicant the amount of any subsequent unpaid weekly compensation on a continuing basis. 6. Liberty to apply within 14 days in respect of calculation of the unpaid weekly compensation amounts. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

It is not in dispute that Roseanne Roe (the applicant) sustained psychological injury (the injury) in the course of her employment as a youth worker with Mackillop Family Services (the respondent), with a date of injury of on 26 December 2019.
On or about 28 February 2019, the applicant made a claim for workers compensation in relation to the injury.
By letter dated 2 March 2022, the respondent’s insurer accepted liability for the injury and the applicant’s claim for weekly compensation, based on pre-injury average weekly earnings (PAWE) of $1,416.33.
By letter dated 21 June 2024, the applicant sought a review of the PIAWE calculation and the weekly benefits paid to the applicant over the course of her claim, on the grounds that from 16 December 2019, the applicant had received an increase to her hourly wage rate increasing her base hourly rate to $31.68 per hour, which was of an ongoing nature at the time of receipt, and the relevant earning period should be adjusted to take into account that financially material change pursuant to clause 8C of the Workers Compensation Regulations 2016 (the 2016 Regulation). On that basis, the applicant calculated the applicant’s PIAWE to be: “$3,308.26 / 2 weeks = $1,654.13 gross per week”. The applicant provided pay slips dated 17 December 2018 to 29 December 2019.
By notice dated 18 July 2024 issued pursuant to s 287A of the Work Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer determined to amend and increase the PIAWE to $1,452.066, which was still less than the rate claimed by the applicant. The notice stated:
“EML are satisfied that the change of rate on 16 December 2019 constitute a material change in your earnings.
As your date of injury was 26 December 2019, the Relevant Period in calculating your Pre-Injury Average Weekly Earnings is therefore from 16 December 2019 to 25 December 2019.
This equates to 10 days or 10/7 = 1.4286 weeks.
EML have calculated your earnings during this period as follows:
522.72+ 253.44 + 448.8 + 392.04 + 32.67 + 392.04 = 2,074.38
Please note that the following calculation was used to exclude the work completed on 26 December 2019:
673.20/3 = 224.4
224.4*2 = 448.8
EML have calculated your PIAWE as follows:
2,074.38 / (10/7) = 1,452.066
CCI will arrange for an adjustment of weekly payments of compensation from the date weekly payments were paid and continuing with the provision that you provide certificates of capacity.”
By notice dated 17 April 2025, the insurer advised that the applicant had been assessed as eligible for weekly compensation payments after 130 weeks from commencement of the third entitlement period on 29 June 2025. The letter stated:
“As of 29/06/2025, your weekly compensation payments will be calculated in accordance with section 38(6) of the WC Act.
As a result, your entitlement rate will be calculated as follows:
(PIAWE x 80%)
Where:
PIAWE is your pre-injury average weekly earnings – currently $1760 gross
PIAWE $1760 x 80% = $1408”
By notice dated 18 July 2024 issued pursuant to s 287A of the 1998 Act, the insurer
The applicant was paid weekly compensation on that basis pursuant to ss 36, 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act) from 30 December 2019 to 11 May 2025.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By way of Application to Resolve a Dispute lodged on 13 May 2025, the applicant initiated proceedings in the Personal Injury Commission (the Commission), seeking an adjustment of weekly earnings paid in respect of the period from 30 December 2019 to 11 May 2025.
At a hearing before me on 30 July 2025, the applicant was represented by counsel, Mr Ty Hickey, instructed by MBT Lawyers. The respondent was represented by counsel, Mr Lachlan Robison, instructed by BBW Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

INTERLOCUTORY ISSUE OF LEAVE PURSUANT TO S 289A OF THE 1998 ACT

The respondent sought leave pursuant to s 289A of the 1998 Act to raise that there has been a financially material change to the earnings of the applicant pursuant to cl 8C(1) of the 2016 Regulation.
Section 289A of the 1998 Act states:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
I note that the letter of the applicant’s solicitors dated 21 June 2024, clearly identified that the applicant sought a review of the PIAWE calculation and the weekly benefits paid to the applicant to take into account a financially material change pursuant to clause 8C of the Regulation from 16 December 2019.
The insurer’s notice dated 18 July 2024 issued pursuant to s 287A of the 1998 Act, stated that the insurer was satisfied that the change of rate on 16 December 2019 constituted a material change in the applicant’s earnings. However, the insurer now seeks to effectively resile from that concession.
Given the insurer’s position stated in the notice dated 18 July 2024, I am satisfied that the insurer now requires leave pursuant to s 289A of the 1998 Act to raise that there has been a financially material change to the earnings of the applicant pursuant to cl 8C(1) of the 2016 Regulation.
Principles relevant to the exercise of the discretion contained in s 289A of the 1998 Act are set out in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227. Having regard to those principles, I particularly note the following:
(a)    the issue of whether there has been a financially material change to the earnings of the applicant pursuant to Regulation 8C(1) of the Regulation is not particularly factually complex nor legally complex. There is no substantial dispute regarding the facts, noting the relevant pay slips;
(b)    the respondent foreshadowed the making of application for leave pursuant to s 289A of the 1998 Act at a preliminary conference on 18 June 2025;
(c)    the insurer has not provided any explanation for delay in not giving the applicant earlier notice of its intention to rely on the application of Regulation 8C(1);
(d)    the insurer has otherwise fulfilled its statutory obligation to notify the applicant of its decision disputing liability as set out in the notices referred to above;
(e)    the applicant may sustain prejudice by the exercise of the discretion contained in s 289A in favour of the respondent because he would be required to address the issue of application of Regulation 8C(1) in circumstances where the insurer had previously effectively conceded that Regulation 8C(1) applied;
(f)    the respondent may sustain prejudice by the exercise of the discretion contained in s 289A in favour of the applicant because it would not be able to raise an otherwise potential ground of dispute;
(g)    the insurer has now sought to raise the application of Regulation 8C(1) through these proceedings upon consideration of the factual and legal issues involved; and
(h)    having regard to the relevant facts involving the applicant’s adjustment in pay from 16 December 2019 as set out in the relevant pay slips, the issue of whether the adjustment constitutes a financially material change to the earnings of the applicant is a material issue relevant to make a legally correct determination of the applicant’s weekly compensation.
Having regard to those factors and the merit and substance of the issue sought to be raised, I am satisfied that equity, good conscience and the substantial merits of the case make it appropriate in the interests of justice that the respondent is now granted the leave sought.
On that basis, I determine that the respondent be granted leave pursuant to s 289A of the 1998 Act to raise that there has been a financially material change to the earnings of the applicant pursuant to cl 8C(1) of the 2016 Regulation.

SUBSTANTIVE ISSUES FOR DETERMINATION

There is no dispute:
(a) that the applicant sustained the injury, and
(b) in relation to the work capacity from time to time.
On that basis, as agreed between the parties, the following issues remain in dispute:
(a) whether there has been a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the applicant (by virtue of which, clause 8C(1) of the 2016 Regulation should operate to determine PIAWE), and
(b) the quantification of the applicant’s entitlement to weekly compensation pursuant to ss 36, 37 and 38 of the 1987 Act.

EVIDENCE

Oral evidence

No oral evidence was given.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply to ARD and attached documents;
(c)    Application to Lodge Additional Documents lodged by the applicant, and
(d)    Application to Lodge Additional Documents lodged by the respondent.
The documentary evidence includes:
(a)    statement of the applicant;
(b)    police statement;
(c)    insurer’s decision notices;
(d)    various correspondence;
(e)    various medical reports and letters of referral in respect of Dr Anand, Dr Roberts and Ms Smith;
(f)    clinical notes of Ochre Health;
(g)    Certificate of Capacity dated 3 July 2025;
(h)    pre-injury and post-injury pay records;
(i)    list of payments;
(j)    PIAWE schedules;
(k)    wages schedules, including amended wages schedule
(l)    payroll records;
(m)     payslips;
(n)    pay breakdown for the week ending 29 December 2019;
(o)    roster, and
(p)    timesheet.
The applicant stated that:
(a)    at the time of the injury, she was working full-time and was contracted to work 38 hours per week;
(b)    on or around 16 December 2019, she received an increase to her hourly pay rate from $30.77 per hour to $31.68 per hour, which was ongoing;
(c)    following that increase, the applicant’s average gross weekly earnings prior to her work injury was $1.654.13;
(d)    subsequent to the injury, she was issued with various Certificates of Capacity which specified her work capacity from time to time;
(e)    subsequent to the injury, she made several unsuccessful attempts to return to work;
(f)    she has not returned to work in any capacity and has not engaged in any other form of pain employment due to the ongoing effects of the injury;
(g)    the insurer has paid the applicant weekly compensation in respect of the injury, and
(h)    however, she has been advised that the amount of weekly compensation paid was incorrectly calculated because it did not take into account the increase to her hourly pay rate.

SUBMISSIONS

Both counsel made lengthy oral submissions which were recorded.
In summary, Mr Hickey submitted on behalf of the applicant:
(a)    the evidence demonstrates that there was a change to the hourly rate of the applicant from 16 December 2019, being an increase from $30.77 to $31.68;
(b)    it is clear that such increase to the applicant’s hourly rate was of an ongoing nature;
(c)    the respondent has not disputed that the pay increase was ongoing;
(d)    the pay increase is consistent with the a yearly increment in the applicable hourly rate prescribed by the Social, Community, Home Care and Disability Services Industry Award (the SCHCADS Award), which is applicable to the applicant’s employment;
(e)    it is plain from the various authorities that even a minor ongoing change to a pay rate should engage the operation of clause 8C of the 2016 Regulation;
(f)    that constitutes a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the applicant for the purposes of clause 8C(1) of the 2016 Regulation;
(g)    accordingly, the relevant earning period for the purposes of determining the applicant’s PIAWE is to be adjusted in accordance with clause 8C(2) of the 2016 Regulation, specifically, by excluding from the period any period before 16 December 2019 (when the change occurred);
(h)    the applicant’s entitlements to weekly compensation should be calculated in accordance with the applicant’s Amended Wages Schedule, which correctly applies clause 8C of the 2016 Regulation;
(i)    clause 8D of the 2016 Regulation should be applied to adjust the relevant earning period, taking into account the regular fortnightly interval at which the applicant receives payment for her work with the respondent and the applicant’s incapacity subsequent to the injury;
(j)    the respondent has not put on any lay evidence in relation to the applicant’s rostering arrangements and its relevance to the applicant’s earnings, and
(k)    it is not appropriate to exclude the other pay components of the applicant’s pay slip because that ignores the mechanism which is prescribed by clause 8C of the 2016 Regulation to calculate PIAWE.
In summary, Mr Robison submitted on behalf of the respondent:
(a)    the applicant bears the onus to establish her case;
(b)    the applicant has not established her case;
(c)    the payslip for the period from 16 December 2019 to 29 December 2019 (at ARD 266) is particularly relevant;
(d)    the respondent concedes that the applicant could reasonably have expected that she would have continued to be paid at the increased hourly rate;
(e)    the respondent accepted that the Social, Community, Home Care and Disability Services Industry Award (the SCHCADS Award) is applicable to the applicant’s employment;
(f)    the respondent only concedes that the applicant’s ordinary hours rate increased;
(g)    the increase in the applicant’s ordinary hours rate was so small that it should be regarded as immaterial and not financially material;
(h)    the respondent disputes that there was any change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the applicant;
(i)    there is no evidence that the change to the applicant’s ordinary hours rate would result in any change in the financial quality of the applicant’s life;
(j)    the pay slip covered the Christmas holiday period;
(k)    the respondent does not concede that the dynamics of other pay components recorded on the pay slip would continue;
(l)    there is no evidence and nothing to suggest that those other pay components would continue on an ongoing basis;
(m)     the Commission needs to also consider the balance of the ordinary hours and the other pay components because, whilst the increase in the ordinary hours rate was relatively small, the operation of the other pay components recorded on that particular pay slip had the consequence that the outcome proposed by the applicant would bring her to a point beyond her actual loss;
(n)    the application of clause 8C in relation to the one pay slip in isolation would result in an excessive financial gain to the applicant;
(o)    in the circumstances, it is not appropriate for clause 8C of the 2016 Regulation to operate and to deviate from the standard formula to calculate PIAWE; and
(p)    in the event that the Commission determines that the increase in the applicants ordinary hours rate of pay was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker, it is not appropriate to also incorporate all the other pay components of the pay slip to determine PIAWE.

FINDINGS AND REASONS

Whether there has been a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the applicant, by virtue of which, clause 8C(1) of the 2016 Regulation should operate to determine PIAWE

Clause 2 of Schedule 3 to the 1987 Act relevantly states:
“2      Meaning of ‘pre-injury average weekly earnings’
(1)     Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
…
(2)     Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3)     The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b) to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(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 weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.

Clause 6(2) of Schedule 3 to the 1987 Act defines the term “earnings”.
The Workers Compensation Regulation 2016 (the 2016 Regulation) provides further guidance and identifies classes of workers where PIAWE is to be calculated on a basis that is not the average of 52 weeks.
Clause 8AA of the 2016 Regulation states that for the purposes of the 2016 Regulation, the “relevant earning period” has the same meaning as in cl 2(2) of Schedule 3 to the 1987 Act.
Clause 8C of the 2016 Regulation states:
“8C Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act
(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
Clause 8D of the 2016 Regulation states:
“8D Alignment of relevant earning period with pay period—Schedule 3, clause 2(3)(b) of 1987 Act
(1) The relevant earning period for a worker in employment may be adjusted to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(2) The relevant earning period is not to be adjusted as provided by this clause unless the insurer is reasonably satisfied that the amount of pre-injury average weekly earnings calculated by reference to the period as so adjusted is not less than the amount that it would have been but for the adjustment.”
It is clear from the wording of cl 8C of the 2016 Regulation, and I accept, that the example given in that clause, being “a change from full-time to part-time work”, does not limit the circumstances which may constitute “a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker” for the purposes of the clause.
The operation of clause 8C of the 2016 Regulation has been considered by the Commission in a number of decisions to which Counsel referred: Cain v Tamworth Aboriginal Medical Service [2021] NSWPIC 193 (Cain); Firth v HammondCare [2022] NSWPIC 630 (Firth); Bhatia v Cameron Logistics Pty Ltd [2023] NSWPIC 540 (Bhatia); Secretary, Department of Communities and Justice v Farrugia [2023] NSWPICPD 75 (Farrugia); and Aguwa v Wesley Community Services Ltd [2023] NSWPIC 648 (Aguwa).
In Firth, Member Isaksen stated at [22] that:
“The application of regulation 8C of the 2016 Regulation involves, in my view, a two step approach of firstly identifying ‘a change of an ongoing nature to the employment arrangement’, and then secondly identifying the financially material change to the earnings of a worker which results from that change in the employment arrangement”.
In Farrugia at [33] to [54], Acting Deputy President Michael Perry discussed the operation of clause 8C of the 2016 Regulation. At [35], Acting Deputy President Perry considered Lismore City Council v Garland (1992) 26 NSWLR 542 (at 549) and stated that:
“… Nevertheless, the core principle, that a worker should be paid weekly compensation at a rate which would have been paid as wages had there been no injury (subject to statutory modifications), is sufficiently analogous for present purposes. This is consistent with Sch 3, cl 2(1) of the 1987 Act, in outlining the meaning of PIAWE, referring to earnings ‘at the time of the injury’.”
In Farrugia at [43], Acting Deputy President Perry acknowledged the relevance of a change to salary rates under an applicable award.
For the following reasons, I am satisfied that the change in the applicant’s hourly rate from 16 December 2019 was a change of an ongoing nature to the applicant’s employment arrangement:
(a)    the facts in the present case are largely not in dispute;
(b)    appears from the various pay slips in evidence that the applicant was paid on a fortnightly basis at an ordinary hours rate as follows:
(i)from 17 December 2018 to 30 June 2019, at the ordinary hours rate of $29.46;
(ii)from 1 July 2019 to 1 December 2019, at the ordinary hours rate of $30.34;
(iii)from 2 December 2019 to 15 December 2019, at the ordinary hours rate of $30.77, and
(iv)from 16 December to 29 December 2019, at the ordinary hours rate of $31.68;
(c)    the evidence demonstrates, it is not disputed, and I accept, that from
16 December 2019, the applicant’s ordinary hours rate increased in the amount of $0.91, from $30.77 to $31.68;
(d)    an email dated 17 July 2024 which appears to be from the respondent’s payroll department stated that “This is a yearly increment to align with SCHCADS Award”;
(e)    the respondent’s counsel accepted that the SCHCADS award is applicable to the applicant’s employment;
(f)    the respondent has not disputed that the increased hourly rate of $31.68 was consistent with the rate prescribed by the SCHCADS Award and that the increase was to align with the SCHCADS award;
(g)    having regard to the evidence, I accept that the increased hourly rate of $31.68 was consistent with the SCHCADS award;
(h)    the evidence demonstrates, it is not disputed, and I accept, that had the applicant not sustained the injury on 26 December 2019, the applicant would have continued to be paid at the ordinary hours rate of $31.68 on an ongoing basis, and
(i)    on that basis, I accept that the change in the applicant’s hourly rate from
16 December 2019 was a change of an ongoing nature to the applicant’s employment arrangement.
For the following reasons, I am satisfied that the change in the applicant’s hourly rate from
16 December 2019, being a change of an ongoing nature to the employment arrangement, resulted in a financially material change to the earnings of the applicant:
(a)    in her employment as a youth worker, the applicant’s pay entitlements was calculated on a base hourly rate;
(b)    the change effected to the applicant’s hourly rate is $0.91;
(c)    whilst the change in the applicant’s hourly rate is less than $1 per hour, when multiplied by the applicant’s work hours, it would result in a much more significant financial difference in the income derived by the applicant over a period of time;
(d)    various authorities referred to above accepted that relatively minor ongoing changes to an hourly rate did engage the operation of clause 8C of the 2016 Regulation;
(e)    for the reasons stated above, I accept that the increase in the applicant’s hourly rate to $31.68 aligned with the applicable increment and entitlement in hourly rate prescribed by the SCHCADS award;
(f)    for those reasons, I do not accept the respondent’s submission that the increase in the applicant’s ordinary hours rate was so small that it should be regarded as immaterial and not financially material, and
(g)    on that basis, I am satisfied that the change in the applicant’s hourly rate from 16 December 2019, resulted in a financially material change to the earnings of the applicant.
For the following reasons, I do not accept the respondent’s submission to the effect that adjustment of the relevant earning period in accordance with cl 8C of the 2016 Regulation on the basis of the one payslip (in respect of the period from16 December to 2019 to 29 December 2019) would result in an excessive financial gain to the applicant and accordingly should not be made:
(a)    the increased ordinary hours rate of $31.68 was recorded in only one payslip (from 16 December to 29 December 2019) because the pay increase was effected from 16 December 2019 and the injury occurred on 26 December 2019;
(b)    relevantly, that one payslip (from 16 December to 29 December 2019) covered the Christmas holiday period;
(c)    in addition to the ordinary hours rate, the pay slip recorded various other components of the applicant’s pay calculations for the fortnightly period, such as hours worked by way of ordinary time, overtime and shifts and applicable penalty rates;
(d)    there is no lay evidence in relation to the applicant’s rostering arrangements and the dynamics of those other components recorded on the pay slip and its relevance to the applicant’s ongoing earnings outside of the Christmas holiday period;
(e)    also, there is no lay evidence to suggest that those other pay components would or would not continue on an ongoing basis;
(f)    further, there is no evidence of any specific excessive financial gain that would be derived by the applicant because of the operation clause 8C of the 2016 Regulation in respect of that one pay slip;
(g)    in any event, as noted above, I am satisfied that the change in the applicant’s hourly rate from 16 December 2019 was a change of an ongoing nature to the applicant’s employment arrangement and that it resulted in a financially material change to the earnings of the applicant;
(h)    that fact engages the operation of clause 8C of the 2016 Regulation, which sets out a mechanism for adjustment of the relevant earning period to be used in calculating PIAWE;
(i)    the legislation does not contemplate any exclusion nor modification of the operation of clause 8C nor the mechanism for calculation of PIAWE for the grounds contended by the respondent;
(j)    the provisions of clause 8C of the 2016 Regulation and clause 2 of Schedule 3 to the 1987 Act clearly articulate the mechanism for calculation of PIAWE, which involves an average of pre-injury earnings over the relevant earnings period;
(k)    notably, clause 2 of Schedule 3 to the 1987 Act refers to “earnings”, not simply ordinary hours;
(l)    the fact that relevant earnings period in this case would, by operation of Clause 8C of the 2016 Regulation, be a relatively short period of time and include the Christmas holiday period, does not provide any basis in the present case to not apply clause 8C of the 2016 Regulation and clause 2 of Schedule 3 to the 1987 Act in the prescribed manner, and
(m)     on that basis, it is not appropriate to exclude the other pay components of the applicant’s pay slip because that ignores the mechanism which is prescribed by cl 8C of the 2016 Regulation to calculate PIAWE.
For all the reasons set out above, I find that there has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant, by virtue of which, cl 8C(1) of the 2016 Regulation should operate to determine PIAWE.

The quantification of the applicant’s entitlement to weekly compensation pursuant to ss 36, 37 and 38 of the 1987 Act

Having regard to my findings above, cl 8C of the 2016 Regulation operates to limit the relevant earning period for the purpose of determining the applicant’s PIAWE to the period of the payslip from 16 December to 29 December 2019.
The applicant’s counsel submitted that, cl 8D of the 2016 Regulation should be applied to adjust the relevant earning period, taking into account the regular fortnightly interval at which the applicant receives payment for her work with the respondent and the applicant’s incapacity subsequent to the injury. The respondent’s counsel did not make any submissions in that regard and did not dispute the operation of cl 8D of the 2016 Regulation in the manner submitted by the applicant.
The applicant’s counsel submitted applicant’s entitlements to weekly compensation should be calculated in accordance with the applicant’s Amended Wages Schedule, which correctly applies cl 8C of the 2016 Regulation. The respondent’s counsel did not make any submissions in relation to the calculations set out in that Amended Wages Schedule and did not dispute the calculations submitted by the applicant.
The mechanism for calculation of weekly compensation is prescribed by ss 36 and 37 of the 1987 Act.
I accept the calculations set out in the applicant’s Amended Wages Schedule.
On the basis of those calculations, I determine that the applicant has been underpaid weekly compensation pursuant to ss 36 and 37 of the 1987 Act and is entitled to the unpaid balance of weekly compensation as follows:
(a) the total underpayment of weekly compensation in respect of the period from
30 December 2019 to 29 March 2020, pursuant to ss 33 and 36 of 1987 Act is:
(i)$2,936.83
(b) the total underpayment of weekly compensation in respect of the period from
30 March 2020 to 20 July 2025, pursuant to ss 33 and 37 of 1987 Act is:
(i)$25,380.24
In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.

SUMMARY

The Commission determines:
(a) there has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant, by virtue of which, clause 8C(1) of the 2016 Regulation should operate to determine PIAWE; and
(b) the applicant has been underpaid her entitlements to weekly compensation pursuant to ss 36 and 37 of the 1987 Act.
Accordingly, the Commission orders:
(a)    the respondent to pay the applicant the amount of $2,936.83 being the total balance of unpaid weekly compensation in respect of the period from 30 December 2019 to 29 March 2020, pursuant to ss 33 and 36 of 1987 Act;
(b)    the respondent to pay the applicant the amount of $25,380.24 being the total balance of unpaid weekly compensation in respect of the period from 30 March 2020 to 20 July 2025, pursuant to ss 33 and 37 of 1987 Act;
(c)    the respondent to pay the applicant the amount of any subsequent unpaid weekly compensation on a continuing basis; and
(d)    liberty to apply within 14 days in respect of calculation of the unpaid weekly compensation amounts.

[2025] NSWPIC 438

27 August 2025