Secretary, Department of Education v Field
[2024] NSWPICPD 23
•22 April 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Secretary, Department of Education v Field [2024] NSWPICPD 23 |
APPELLANT: | Secretary, Department of Education |
RESPONDENT: | Denis Michael Field |
INSURER: | Allianz as Agent for the NSW Self Insurance Corporation |
FILE NUMBER: | A1-W1297/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 22 April 2024 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 11 May 2023 is revoked. 2. The respondent’s pre-injury average weekly earnings figure is $601.78. |
CATCHWORDS: | WORKERS COMPENSATION – Clause 2 of Schedule 3 to the Workers Compensation Act 1987 – casual worker – calculation of pre-injury average weekly earnings – whether regulations 8C, 8D or 8E of the Workers Compensation Regulation 2016 apply to exclude from the “relevant earning period” periods when the worker did not work – Secretary, Department of Education and Justice v Stewart [2024] NSWCA 59 applied – application of judicial comity – La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201; Comino v Kremetis [2023] NSWSC 32 considered; Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 considered and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Grimes, counsel | |
| Hall & Wilcox | |
| Respondent: | |
| Mr B Necovski, counsel | |
| Shine Lawyers | |
DECISION UNDER APPEAL: | Field v Secretary, Department of Education [2023] NSWPIC 214 |
MEMBER: | Mr P Sweeney |
DATE OF MEMBER’S DECISION: | 11 May 2023 |
INTRODUCTION AND BACKGROUND
Mr Denis Michael Field (the respondent) was employed as a casual teacher by the Secretary, Department of Education (the appellant). On 14 October 2022, the respondent suffered multiple injuries when he fell down steps in the course of his employment. Liability for the injuries was accepted by the appellant, however a dispute arose as to how the respondent’s pre-injury average weekly earnings was to be calculated, given that, as a casual teacher, there were periods when the respondent did not work.
The appellant asserted that, in accordance with the definition of pre-injury average weekly earnings in cl 2 of Sch 3 to the Workers Compensation Act 1987 (the 1987 Act), the respondent’s total earnings during the 52 weeks immediately prior to the injury, ($31,292.74) were to be divided by the whole 52 weeks, which resulted in an average of $601.78 per week.
The respondent asserted that his total earnings ought to be divided by the number of weeks that he actually worked, which was considerably less than 52 weeks and would result in the pre-injury average weekly earnings figure of $1,688.40.
The Member determined that the respondent’s pre-injury average weekly earnings were to be calculated by reference to the weeks in which the respondent actually performed work in the 52-week period prior to his injury.
The appellant appeals that determination.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties are content for the appeal to be determined on the basis of the documents in evidence and their written submissions. I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions made by the parties. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The respondent’s statement evidence
The respondent provided a statement dated 7 December 20[22].[1] He confirmed that he had been employed by the appellant as a schoolteacher in a permanent role since 1964 and from 2000 he taught on a casual basis. He said he suffered significant injuries in the course of his employment in an incident on 14 October 2022 when he fell down some stairs. He described the extent of his injuries.
[1] Application to Resolve a Dispute (ARD), pp 1–2.
The respondent said that he could only recall working in the 52-week period prior to his injury from 5 May 2022 until the date of injury. He said he earned approximately $31,000 during that time. He advised that the appellant had calculated his average weekly earnings over that period to be $601.78, which he said was much lower than his weekly rate.
The respondent provided a supplementary statement dated 4 April 2023, which was not attached to any application to admit late documents but was admitted into evidence. He said that he was offered, and accepted appointment as a temporary teacher in early 2021, which was for the whole of the 2021 year ending on 17 December 2021. He stated that he only worked for one of those days because this was during the period when COVID-19 was at its peak, and he was concerned about COVID-19 because of his age.
The respondent indicated that he would be offered teaching jobs by the person in charge of casual jobs at each school and said that he would sometimes receive about 3 calls per day. He recalled rejecting job offers in the period from 18 December 2021 to 13 October 2022.
The appellant’s evidence
The appellant provided details of the respondent’s weekly earnings over the 52 weeks leading up to his injury, which disclosed that the respondent earned $450.81 in the fortnightly pay period ending 11 November 2021, $450.81 in the fortnightly pay period ending 25 November 2021, then did not work again until the fortnightly pay period ending 12 May 2021. He thereafter consistently worked for varying hours until his injury. His total earnings for the period were $31,292.74.[2]
[2] Reply to Application to Resolve a Dispute (reply), p 8.
THE LEGISLATION
Clause 2 of Sch 3 to the 1987 Act provides:
“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.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(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) … .”
Clause 6(1) of Sch 3 to the 1987 Act relevantly provides:
“Meaning of ‘earnings’
(1) The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.”
Regulation 8AA of the of the Workers Compensation Regulation 2016 (the 2016 Regulation) defines “the relevant earning period” as having “the same meaning as in clause 2(2) of Schedule 3 to the 1987 Act”.
Division 2 of Pt 4 of the 2016 Regulation (reg 8A to reg 8EA) provides for an adjustment of the “relevant earning period” defined in cl 2(2) of Sch 3 for the purpose of calculation of the worker’s pre-injury average weekly earnings.
The relevant regulations within Div 2 of Pt 4 of the 2016 Regulation provide:
“8A Operation of Division
(1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker.
(2) The relevant earning period in respect of the employment is to be adjusted in accordance with the provisions of this Division in the following order—
(a) Clause 8B (Adjustment for workers not continuously employed),
(b) Clause 8C (Adjustment for financially material change to earnings),
(c) Clause 8D (Alignment of relevant earning period with pay period),
(d) Clause 8E (Adjustment for unpaid leave),
(e) Clause 8EA (Adjustment for prescribed periods relating to COVID-19).
(3) Accordingly, a reference in a provision of this Division—
(a) to the relevant earning period is a reference to the relevant earning period as adjusted in accordance with any preceding provision applicable to the worker, or
(b) to the unadjusted earning period is a reference to the relevant earning period as so adjusted, but without regard to any adjustment under the provision in which the expression is used.
8B Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act
(1) The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged in the employment from the beginning of the unadjusted earning period.
(2) The relevant earning period for the worker in the employment is to be adjusted by excluding any period before the day on which the worker was first engaged in the employment.
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.
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.
8E Adjustment for unpaid leave—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 any period of not less than seven consecutive calendar days within the unadjusted earning period—
(a) no earnings in the employment were paid or payable to the worker, and
(b) the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.
(2) The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.”
THE MEMBER’S REASONS
The Member noted the positions of the parties in respect of how the respondent’s pre-injury average weekly earnings should be calculated. The Member summarised their submissions, noting that the respondent relied upon regs 8B, 8C, and particularly reg 8E of the 2016 Regulation. He noted that the respondent also relied on the reasoning in the Commission’s decisions in Wake v State Emergency Services,[3] a decision of Member Wright, and Peric v State of New South Wales (NSW Health Pathology)[4] a decision of the former Arbitrator of the Workers Compensation Commission, Arbitrator Dalley (as he then was).
[3] [2022] NSWPIC 50 (Wake).
[4] [2019] NSWWCC 242 (Peric).
The Member summarised the appellant’s submissions that the plain words of Sch 3 did not permit the calculation of the pre-injury average weekly earnings to be based upon the weeks actually worked rather than the prescribed 52-week period, that the reasoning in Wake was obiter and, in any event, it was wrong. The Member noted the appellant’s submission that Peric was not applicable because it involved different circumstances. He noted that the appellant referred to the reasoning of the High Court in ReBolton; ex parte Beane[5] and further submitted that the recommendations from the “Parliamentary Committee”[6] provided no assistance in respect of the meaning of Sch 3.
[5] [1987] HCA 12.
[6] Field v Secretary, Department of Education [2023] NSWPIC 214 (reasons), [16].
The Member remarked that the evidence provided by the respondent was “sparse” but noted that it was agreed that the respondent was employed as a casual worker, the appellant was not under any obligation to offer the respondent work and there was no obligation for the respondent to accept work that was offered. The Member observed that it was probable that the respondent would have declined work because of concerns in relation to COVID-19 but he considered that there may have been other additional reasons for not working, such as not being offered work during the Christmas holiday break or when the schools were having no staff shortages.
The Member considered the High Court authorities of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[7] and Project Blue Sky Inc v Australian Broadcasting Authority,[8] and the principles set out in those authorities as to how to approach the task of statutory construction. He said that the task begins with a consideration of the text itself but also involves a consideration of the text in the context of the history, purpose and policy of the legislation. The Member observed that courts are reluctant to adopt the interpretation of a parliamentary member as to what the provision should mean.
[7] [2009] HCA 41.
[8] [1998] HCA 28.
The Member referred to the Minister’s statement that Sch 3 did nothing more than introduce a “simple and clear method of determining”[9] the pre-injury average weekly earnings and said that the recommendations from the “Standing Committee”[10] were equally general in its terms and were of doubtful assistance.
[9] Reasons, [25].
[10] Reasons, [23].
The Member observed that the current method of calculation had been introduced by the Workers Compensation Legislation Amendment Act 2018 (the 2018 Amendment Act). He noted that at the commencement of the 1987 Act, s 43(1)(e) defined a casual worker and s 43(1)(f) made provision for the circumstances in which a casual worker who was prevented from working for any reasonable cause would be entitled to the full wage for a working week or the basic wage, whichever was the greater. The Member further observed that, immediately prior to the introduction of the amendments to the method of calculation introduced by the 2018 Amendment Act, s 44C of the 1987 Act applied, which provided that:
“(1) In this Division, pre-injury average weekly earnings in respect of a relevant period in relation to a worker means:
(a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum”.
The Member noted that the relevant period referred to in s 44C was 52 weeks immediately prior to the injury, with provision for certain contingencies. He observed that the respondent in this case would have had the benefit of that section but for the introduction of the 2018 Amendment Act but further observed that the current legislation was quite different to those earlier provisions.
The Member referred to Wake, and Member Wright’s consideration of the interpretation of cl 2 of Sch 3. The Member extracted the following passages from Member Wright’s decision:
“While in my view clause 2 does not expressly provide an exception, it is necessary to consider whether there is an exception inherent in the definition of PIAWE, or whether the interpretation of clause 2 that is contended by the applicant does not require the application of the regulations for the relevant adjustment.”[11]
And:
“As noted, clause 2(1) relates the weekly average to the ‘earnings received’. In my view, the weekly average, that is a calculation implying a division by the number of weeks, is tied to the meaning of earnings received and the number of weeks should not be considered in isolation, or arrived at independently, without reference to weeks in which there are earnings received. The word ‘gross’ in my view makes no difference as it signifies a distinction from ‘net’ rather than a totality of earnings for a period without regard to the meaning under consideration.
Moreover, when no work is performed during a relevant week, the amount of earnings received is not a value of ‘0’ or ‘nil’, rather it is a null result, and the relevant week is not a week for the purpose of the calculation within the statutory meaning. To include such a result would be a misleading and arbitrary calculation, in my view.
This outcome, in my view, would not be anomalous with other not uncommon working situations, such as casual, seasonal or piecemeal workers who may experience unfortunate periods of not receiving earnings in any particular week. As a simple example, a casual worker, who earns $500 gross per week for work performed in a particular week, may work 26 weeks out of the relevant 52 weeks, for example they work every other week. If earnings received are regarded as ‘0’ for weeks not worked and average weeks include weeks not worked, then the PIAWE calculation results in $250 gross per week. The interpretation that I have found in my view avoids such anomalous situations.”[12]
[11] Wake, [40].
[12] Wake, [45]–[47].
The Member thought that it was likely that Member Wright had adopted the approach set out by Dixon CJ in Commissioner for Railways (NSW) v Agalianos[13] that:
“It may be illogical to speak of a man as a recipient of a sum of money in prescribing the calculation on the result of which his receiving the money is contingent, but the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to this meaning than the logic with which it is constructed.”
[13] [1955] HCA 27, [5].
The Member reasoned that, because ‘earnings’ in respect of a week are defined as the income received by a worker for work undertaken ‘during the week’, it could be contemplated that the average weekly earnings were to be determined by dividing the worker’s gross weekly earnings by the weeks that the worker actually earned income. He said that cl 2(2) of Sch 3 does not require that the whole 52 weeks during which the worker is employed must be divided by 52 weeks. He pointed out that all it says is that no regard is to be had to the periods before and after the 52 weeks. The Member observed however that an interpretation that allows for the gross weekly earnings to be divided by the number of weeks that a worker actually works is not consistent with the relevant regulations. He said that:
“If that approach were correct there would be no need for the relevant period to be adjusted for unpaid absences of not less than seven consecutive days as contemplated by cl 8E. Similarly, there would be no real need for cl 8B as the language of Schedule 3 could accommodate the fact that the [respondent] only worked for a limited number of weeks in the 52-week period. While these clauses in the Regulation cannot negate the language of Schedule 3, they suggest a legislative intention to determine PIAWE by dividing average weekly earnings by 52 weeks unless one of the exceptions provided for by the Regulation apply.”[14]
[14] Reasons, [35].
The Member considered that it was arguable that Sch 3 was intended to specify what should be considered income for the purpose of assessing the gross weekly earnings and not to limit the weeks which should be taken into account. The Member commented that the method for calculating the pre-injury earnings introduced by the 2018 Amending Act, compared to the previous plain words used for establishing the pre-injury average weekly earnings, was “peculiarly arcane.”[15]
[15] Reasons, [36].
The Member referred to the respondent’s submission that in Peric, the Member excluded from the calculation the periods during which the worker did not work. The Member observed, however, that the calculation that applied in that case was governed by a different legislative scheme, which specifically excluded weeks in which the worker did not work.
The Member turned to the potentially applicable regulations. He noted that reg 8B applied where a worker was not employed from the beginning of the unadjusted earning period. He said, however, that the respondent was employed at the beginning of the 52-week period so that it was difficult to see how the provision could apply to the respondent. He referred to the respondent’s submission that he was employed under a series of separate contracts which coincidentally fell within the 52 weeks prior to his injury. He said, however, that the evidence in this case made it difficult to reach that conclusion.
The Member referred to reg 8C, which allows the 52-week period to be adjusted where there is a change of an ongoing nature to the employment arrangements that resulted in a material financial change to the worker’s earnings. He noted that a number of members had concluded that ‘employment arrangements’ was a board term, and included circumstances where there was a change in the hourly rate of pay or a transition from part-time work to full-time work. The Member considered that it was not obvious that there had been any change in the respondent’s employment arrangements during the relevant period, in circumstances where the appellant had a discretion to offer the respondent work and the respondent could accept or reject that work at any time during the period.
The Member turned to reg 8E. He noted that the respondent submitted that reg 8E was applicable to the circumstances in this case. The Member observed that it was difficult to conclude that a period during which a casual worker was either not offered work or refused work could be considered ‘unpaid leave.’ He referred to the respondent not having the benefit of leave entitlements. He said that the worker’s absence from work prior to 5 May 2022 could not be considered unpaid leave. He said it was highly unlikely that this regulation applied to the facts of this case.
The Member concluded that none of the regulations assisted the respondent. He said that, in the absence of the reasoning in Wake, he would have accepted the appellant’s method of calculating the pre-injury average weekly earnings. He considered that the outcome in Wake “did not sit comfortably with the language of Schedule 3”,[16] however, he was not of the view that Wake was ‘plainly wrong.’ He considered that it was therefore appropriate for him to follow that decision, and to conclude that the appellant was in error to calculate the pre-injury average weekly earnings in the manner that it did.
[16] Reasons, [43].
He concluded that:
“Accordingly, I hold that the [appellant] has erred in its calculation of PIAWE. The [respondent’s] PIAWE should be calculated by reference to the number of weeks during which the [respondent] performed work in the 52 week period prior to the injury. As there are competing calculations, I will leave the arithmetic to the parties. But I will give liberty to apply.”[17]
[17] Reasons, [43].
The Certificate of Determination issued on 11 May 2023 records:
“The Commission determines:
1. That the [respondent’s] pre-injury average weekly earnings be calculated by reference to the weeks in which he actually performed work in the 52 week period before his injury.
2. Liberty to apply, if necessary, in relation to calculations.”
GROUNDS OF APPEAL
The appellant brings two grounds of appeal, as follows:
(a) Ground A: The Member erred in law by failing to provide adequate reasons for his findings, and
(b) Ground B: The Member erred in law by failing to provide the appellant with procedural fairness by not dealing with the appellant’s submissions.
SUBMISSIONS
As to Ground A
The appellant’s submissions
The appellant reproduces r 78 of the Personal Injury Commission Rules 2021, which requires that in Commission proceedings, the decision-maker is required to provide a brief statement of the reasons for the decision-maker’s determination and prescribes the matters that are to be addressed in those reasons. The appellant submits that, contrary to r 78, the Member failed to include in his determination the reasoning process that led him to his conclusions and failed to provide sufficient reasons in order to enable the parties to be aware of his view of the case presented.
The appellant relies upon M & S Shipman Pty Ltd v Matters,[18] in which Fleming DP observed that, to succeed in establishing that the reasons were inadequate, it is necessary that “the inadequacy sufficiently demonstrates that the [Member] has failed to exercise his or her statutory duty to fairly and lawfully determine the [matter].”[19]
[18] [2003] NSWWCCPD 19 (Matters).
[19] Matters, [84].
The appellant submits that the failure to address inadequacies in the evidence may constitute a failure to give adequate consideration to the evidence, which is also an error of law, citing the Presidential decision of Symbion Health Ltd v Ford.[20] The appellant further cites Charles Sturt University v Manning[21] to say that a Member is required to properly deal with conflicting evidence in order to determine what evidence the Member preferred and why.
[20] [2008] NSWWCCPD 13 (Ford), [81]–[83].
[21] [2016] NSWWCCPD 10 (Manning), [52]–[63].
The appellant reproduces [43] of the Member’s reasons, in which the Member reasoned that:
(a) none of the clauses in regs 8A to 8E assisted the respondent’s case;
(b) if he was unrestricted by the decision in Wake, he would have accepted that the appellant’s calculation complied with Sch 3, however;
(c) he did not consider that Wake was plainly wrong, and
(d) he was therefore of the view that it was appropriate to follow that decision so that the respondent’s pre-injury average weekly earnings should be calculated by dividing the total earnings by the number of weeks.
The appellant asserts that the Member failed to give reasons explaining why:
(a) the decision in Wake was not plainly wrong;
(b) he considered that the reasoning in Wake should apply;
(c) he should follow the reasoning in Wake, and
(d) why the appellant’s calculation was wrong.
The appellant says that the Member made the following observations which were contrary to the conclusion that the reasoning in Wake was correct:
(a) the intention expressed by the Minister in relation to the introduction of Sch 3 was to introduce a simple and clear method by which the pre-injury average weekly earnings could be calculated;
(b) the structure of the current legislation was very different to the previous legislation;
(c) to allow the gross weekly earnings to be divided by the weeks actually worked would be inconsistent with several of the regulations;
(d) if the approach in Wake was correct, there would be no need for the period to be adjusted to account for unpaid absences of not less than seven consecutive days as contemplated by reg 8E, and reg 8B would have no purpose, and
(e) the clauses in the 2016 Regulation suggest that the legislature intended that the pre-injury average weekly earnings should be divided by 52 weeks unless one of the regulations provided an exception to that provision.
The appellant asserts that the Member appeared to rely upon the principle of comity when he indicated that he was obliged to follow the reasoning in Wake. The appellant quotes a passage from the decision in Comino v Kremetis[22] in which it was said that the rule of comity does not override the fundamental duty of a trial judge to decide the case before him or her, provided there had been proper consideration given to the earlier judgment.
[22] [2023] NSWSC 32 (Comino).
The respondent’s submissions
The respondent contends that the appellant’s assertions of error on the part of the Member are misplaced and says that the appeal should be rejected.
The respondent asserts that, as observed in Matters, the appellant is required to establish that the Member failed to exercise his statutory duty to fairly and lawfully determine the matter, which is not easily established and has not been achieved in this case. The respondent contends that the authorities of Ford and Manning are not relevant to the circumstances in this case. The respondent says that this case only involved a question of law, whether Wake applied, the application of Peric and an analysis of Sch 3. The respondent points out that this case does not involve an assessment of any conflicting medical evidence or a failure to take into account particular evidence.
The respondent describes the calculation of the pre-injury average weekly earnings pursuant to Sch 3, which was intended to be a new and simplified approach, as “complex.” The respondent contends that there is no information that indicates that the intention was to deprive casual workers or to reduce the entitlement they had prior to the introduction of the legislation.
The respondent refers to the observation of Arbitrator Dalley in Peric in relation to s 44C(1)(a) of the 1987 Act (as it then was) as to the assessment of the “relevant period”, in which the Arbitrator determined that 30 weeks should be excluded from the calculation because Mr Peric did not actually work during that period and he was not on paid leave.
The respondent submits that the Member in this case analysed both Peric and Wake, determined that Wake was not “plainly wrong” and, being obliged to follow the principle of comity, adopted that reasoning. The respondent asserts that, if the appellant’s submissions are accepted, the outcome for casual workers would be unfortunate. He reiterates that there is no secondary material which might confirm that the legislation was intended to reduce their entitlements.
The respondent, relying on the Full Court of the Federal Court decision of Kowalski v Repatriation Commission,[23] submits that a ground of appeal must identify the error in a meaningful way, and it is insufficient to make broad allegations of a failure to give reasons by “simply pointing to several paragraphs in the decision and asking rhetorical questions …, instead of outlining the principles that have been offended.”[24] The respondent contends that this appeal ground should be dismissed.
As to Ground B
[23] [2011] FCAFC 43.
[24] Respondent’s submissions, [9(h)].
The appellant’s submissions
The appellant reproduces numerous paragraphs from DNA17 vMinister for Immigration and Border Protection,[25] an extract from CPE15 v Minister for Immigration and Border Protection,[26] and a further extract from the Presidential decision in Sarheed v C1 Formwork Group Pty Limited,[27] in which the relevant principles in respect of identifying error on the part of the Member are set out.
[25] [2019] FCAFC 146.
[26] [2017] FCA 591.
[27] [2021] NSWPICPD 7.
The appellant contends that the Member failed to respond to or engage with its submissions that:
(a) Wake is distinguishable because it related to the exclusion of long service leave rather than periods when a casual employee earned no income, so that it is factually different;
(b) the observations in Wake about casual workers was obiter and not binding, and
(c) any adjustment of the 52-week period must be in accordance with the 2016 Regulation.
The appellant submits that those submissions were relevant and material submissions and were part of the appellant’s substantive argument, so that it was necessary for the Member to respond or engage with those submissions. The appellant asserts that the failure by the Member to engage and deal with those submissions, which were clearly articulated and central to the issue in the proceedings, amounted to error.
The respondent’s submissions
The respondent says that, while the facts in this case and in Wake are different, the appellant has failed to take into account the Member’s specific wording in Wake. The respondent quotes paragraphs [45] to [48] of the reasons in Wake. The respondent submits that Wake was not limited to the question of the exclusion of long service leave from the calculation of the pre-injury average weekly earnings.
The respondent says that Wake “specifically referred to the avoidance of unfortunate situations pertaining to casual or seasonal workers which do not sit neatly within the regulations.”[28] He says that Wake involved the (beneficial) interpretation of cll 2 and 6, which clauses apply uniformly to all disputes about pre-injury earnings. He asserts that Wake cannot therefore be discarded as obiter dictum in respect of casual workers and the Member in Wake gave specific consideration as to whether the definition of pre-injury average weekly earnings provides an inherent exception or whether cl 2 did not necessitate the application of the regulations.
[28] Respondent’s submissions, [10(b)].
The respondent submits that, adopting the reasoning in Wake and on a common-sense reading of what is beneficial legislation, an adjustment of the 52-week period need not be restricted to the regulations. The respondent contends that the appellant’s submissions asserting error in failing to deal with a clearly articulated argument are without merit, in the context of the Member’s reliance on the passages cited from Wake. The respondent maintains that the Member gave sufficient and proper explanation for following Wake.
FURTHER SUBMISSIONS OF THE PARTIES
The Member issued his decision on 11 May 2023, after a number of other non-presidential decisions had been issued by members of the Commission in relation to the application of cll 2 and 6 of Sch 3 to the 1987 Act and reg 8AA and reg 8A to 8AE of the 2016 Regulation. One of those decisions was Stewart v Secretary, Department of Communities and Justice,[29] which was determined by a different Member on 28 June 2022. In that case, the non-presidential Member concluded that the 52-week period should be adjusted by excluding the weeks during that period when Mr Stewart had been in receipt of weekly payments of compensation in respect of an unrelated injury. The Member applied reg 8D, which allowed for an adjustment to align the relevant earning period with any regular interval at which time the worker was entitled to receive payment of earnings for work done.
[29] [2022] NSWPIC 333.
That decision was appealed, and the appeal was allocated to me. In my decision dated 23 June 2023, I determined that the period of 52 weeks could not be adjusted without recourse to the regulations, the period could be adjusted but not on the basis of reg 8D, and that reg 8E applied because the period when Mr Stewart was on weekly payments was “unpaid leave.”[30]
[30] Secretary, Department of Communities and Justice v Stewart [2023] NSWPICPD 35.
The Secretary, Department of Communities and Justice appealed to the Court of Appeal. The plurality of the Court rejected the notion that the leave taken by Mr Stewart in respect of a different work-related injury for which Mr Stewart received weekly payments of compensation could be considered “unpaid leave” in accordance with reg 8E and determined that the relevant earning period could not be adjusted.[31]
[31] Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59 (Stewart).
The Court also considered a Notice of Contention lodged by the respondent asserting that the finding as to Mr Stewart’s entitlement was correct, but for different reasons. The respondent’s argument was that, for the purpose of calculating the pre-injury earnings, the “relevant period” referred to in cl 2(2) of Sch 3 should be construed as a maximum of 52 weeks and that the 52-week period could be reduced without recourse to regs 8A to 8E.
In her minority judgment, Stern JA reasoned:
“Having regard to my conclusion as set out above, the notice of contention can be dealt with briefly. It is sufficient to observe that the proposed construction of cl 2(2) of Sch 3 to the [1987 Act]advanced by MrStewartby way of notice of contention should be rejected as being both inconsistent with the text of that clause, and inconsistent with the apparent purpose of Sch 3 to the [1987 Act].
As to the former, cl 2(2) of Sch 3 to the [1987 Act] defines the ‘relevant earning period’ as the period of 52 weeks ending immediately before the date of injury. There is nothing in the language of cl 2(2) of Sch 3 that contemplates that the ‘relevant earning period’ is a ‘maximum’ of 52 weeks. On that basis alone, Mr Stewart’s contention should be rejected.
However, as set out above, it would be inconsistent with Sch 3 to the [1987 Act] as a whole for the ‘relevant earning period’ to have a flexible content, constrained only by it having to be less than 52 weeks. If that were the case, the provision in cl 2(3) of Sch 3 for regulations to extend or reduce that period would make no sense. Moreover, there would be unacceptable uncertainty plaguing the calculation of pre-injury average weekly earnings if there were no clarity as to what period was to be used for the purpose of calculating either the worker’s earnings, or the period over which those earnings should be averaged.
It necessarily follows that in my judgment the notice of contention should be dismissed.”[32]
[32] Stewart, [120]–[123].
Both Griffiths AJA and Leeming JA agreed with Stern JA on this point, with Griffiths AJA observing that:
“I am grateful to Stern JA for summarising the factual background and setting out the relevant legislative provisions, which need not be repeated. I agree with her Honour’s reasons for rejecting the notice of contention.”[33]
And Leeming JA indicating that:
“I would dismiss the notice of contention, which is reproduced at [38] below, and which propounded a general discretion to alter the period throughout which pre-injury average weekly earnings were calculated. As Stern JA observes, that has no foundation in the text, and is inconsistent with provision being made for regulations to adjust the period. I agree with Griffiths AJA that there can be only one outcome to the appeal, and therefore this Court should make orders to achieve that result.”[34]
[33] Stewart, [125].
[34] Stewart, [17].
As the parties in this case had made their submissions prior to my decision being issued in Stewart and before the determination of the appeal from that decision, the parties were given the opportunity to provide any further submissions they wished to make in respect of the observations and findings of the Court of Appeal. The following is a summary of the submissions made.
The appellant’s further submissions
The appellant submits that Stewart involved an absence from work while in receipt of weekly compensation, which is not “entirely analogous”[35] to the present matter. The appellant says, however, that in the present matter the respondent relied upon regs 8B, 8C, and particularly reg 8E in submissions to the Member. The appellant points out that the Member rejected the submissions that those regulations applied. The appellant asserts that the Member’s rejection was supported by the decision in Stewart.
[35] Appellant’s written submissions dated 16 April 2024, [3].
The appellant refers to the Notice of Contention raised by the respondent in Stewart and submits that the notion that a general discretion existed to alter the period of 52 weeks was unanimously dismissed by the Court. The appellant contends that the Court’s dismissal supports its submission to the Member that any adjustment to the period could only occur in accordance with the 2016 Regulation.
The appellant submits that the majority in Stewart highlighted the importance of giving statutory terms (in this case unpaid leave) their ordinary meaning, without unduly extending or straining the meaning of the term. The appellant says that to apply reg 8E to a casual worker who has no “leave” entitlements and who simply declined work during any given time would be unduly extending the meaning of the term “unpaid leave.”
The respondent’s further submissions
The respondent submits that the only issue in Stewart was “whether a period of absence from work due to incapacity from an injury constitutes a ‘period of unpaid leave’ for the purposes of cl 2(3)(a) of Sch 3 to the Act.”[36] The respondent asserts that Stewart is factually different to the present case and does not lend any assistance to a determination of how to calculate a casual worker’s pre-injury average weekly earnings.
[36] Respondent’s further submissions (undated), [3].
The respondent indicates that he relies upon his earlier submissions that the decision in Wake remains instructive and should be followed.
CONSIDERATION
Essentially, the Member considered the appellant’s submissions persuasive but found that he was obliged, as a matter of comity, to follow the reasoning in Wake. It is thus necessary to review the authorities in which the notion of comity is discussed.
In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs,[37] French J (as his Honour then was) observed that:
“I am not bound by any doctrine of precedent to apply the construction adopted by Ryan J in Ball. The position in this Court is the same as that expressed by Lord Goddard CJ (Atkinson and Lewis JJ agreeing) in Police Authority for Huddersfield v Watson [1947] 1 KB 842 at 848:
‘... I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction.’”[38]
[37] [2003] FCA 757 (Hicks).
[38] Hicks, [74].
Justice French further noted Burchett J’s observation in La Macchia v Minister for Primary Industries and Energy[39] that:
“The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court … ‘a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance … unless he is convinced that the judgment was wrong.’ ... The word ‘usually’ indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle ...”.[40]
[39] (1992) 110 ALR 201 (La Macchia).
[40] La Macchia, 204.
More recently, Chen J in Comino reviewed the relevant authorities and observed that the “practice is limited to questions of law, and has no application to questions of fact” and “the rule does not override the fundamental duty of the trial judge to decide the case albeit that that process involves consideration of, and proper regard being given to, the previous judgment.”[41]
[41] Comino, [63].
The determination the Member was required to make was a question of statutory interpretation, not a factual determination, so that it was appropriate for the Member to consider the decision in Wake and whether he should adopt the rule of comity.
As submitted by the appellant, Comino is authority to say that the rule of comity does not override the fundamental duty of a trial judge to decide the case before him or her, provided there had been proper consideration given to the earlier judgment.
The Member in this case observed that he was not convinced that the reasoning in Wake was “plainly wrong”, a phrase that reflects the observations made by French J above that a primary decision-maker would usually follow a decision of another primary decision-maker, unless he was convinced that the decision was wrong. That is, whether the rule is to be followed is reliant upon the primary decision maker’s opinion as to the correctness of the earlier decision.
Ground A: The Member erred in law by failing to provide adequate reasons for his findings
The appellant relies on Ford and Manning to say that a failure to give adequate consideration to the evidence or to fail to deal with conflicting evidence may constitute error. It is difficult to see how the Member can have erred in that respect in this case, in which there was no conflicting evidence and the question to be determined was one that turned upon statutory interpretation, rather than the acceptance or rejection of evidence.
The Member arrived at his decision after taking into account the submissions of both parties, observing that the appellant’s submissions were persuasive, considering the reasoning by Member Wright in Wake, and reaching the conclusion that he would follow Wake because he did not consider it “plainly wrong.” He did not at that time have the benefit of higher authority to assist him in the formation of his view as to the correctness of the earlier decision. His approach was consistent with that suggested in the above authorities dealing with the question of comity, which includes the requirement to give proper consideration to the earlier decision.
The appellant relies on Matters, asserting that the Member failed to provide sufficient reasons for his conclusion. There is nothing inadequate about the Member’s reasoning process. He provided detailed reasons for his conclusion. In those circumstances, where the Member was not assisted by higher authority as to the correctness or otherwise of Wake, it cannot be said that the Member failed to exercise his statutory duty to give reasons.
The appellant’s assertion that the Member failed to give adequate reasons for his determination is not made out.
Ground B: The Member erred in law by failing to provide the appellant with procedural fairness by not dealing with the appellant’s submissions
The appellant asserts that the Member failed to engage with his submissions that Wake was:
(a) factually different because it involved a worker who was on long service leave, rather than a casual worker;
(b) not persuasive because Member Wright’s comments about casual workers were obiter dictum, and
(c) wrong to say that the adjustment of the 52 weeks could be made without application of the regulations.
The appellant refers to the Notice of Contention dealt with by the Court of Appeal in Stewart and submits that the Court’s observations support its submission that the Member erred in following Wake. While the complaint that the Member erred in following Wake is not overtly expressed in either ground of appeal, the substance of the submission falls squarely within the issues raised before the Member and on appeal. It is implicit, in my view, that the acceptance of the rationale in Wake amounted to a failure to properly and lawfully deal with the appellant’s submission that it was fundamentally wrong to say that it was not necessary to have recourse to the regulations in order to adjust the 52 weeks.
The observations made by the Court of Appeal in respect of the Notice of Contention in Stewart indicate that the approach taken by Member Wright in Wake, reproduced by the Member in this case at [26] above, was wrong. It follows that the Member’s conclusion that Wake was not “plainly wrong” was erroneous and the Member’s conclusion to follow that case was affected by legal error.
This ground of appeal succeeds, and the Member’s Certificate of Determination dated 11 May 2023 is revoked.
The issue as to the calculation of the respondent’s pre-injury average weekly earnings requires re‑determination. Pursuant to s 352(5) and s 352(6A) of the 1998 Act, I consider it appropriate to re-determine the issue rather than to remit the matter to another non‑presidential member.
RE-DETERMINATION
In her consideration of the Notice of Contention lodged in Stewart, Stern JA (with whom Leeming JA and Griffiths AJA agreed) concluded that Mr Stewart’s contention that the “relevant period” referred to in cl 2(2) of Sch 3 should be construed as a maximum of 52 weeks and that the 52-week period could be reduced without recourse to regs 8A to 8E should be rejected because:
(a) the proposition was inconsistent with the text of that clause, and inconsistent with the apparent purpose of Sch 3 to the 1987 Act;
(b) there is nothing in the language of cl 2(2) of Sch 3 that contemplates that the “relevant earning period” is a “maximum” of 52 weeks;
(c) it would be inconsistent with Sch 3 to the 1987 Act for the “relevant earning period” to have a flexible content, and
(d) if the proposition was accepted, the provision in cl 2(3) of Sch 3 for regulations to extend or reduce that period would make no sense and would create an unacceptable uncertainty in calculating the pre-injury average weekly earnings.
Therefore, in order to determine whether the period of 52 weeks can be adjusted in the respondent’s case, he must establish that one of the regs 8A to 8E apply. He relied on regs 8B, 8C and 8E.
As observed by the Member:
(a) reg 8B does not apply to the respondent because it only applied where a worker was not employed from the beginning of the unadjusted earning period, and in this case the respondent was employed at that time;
(b) reg 8C does not apply because there had not been any material change in the respondent’s employment arrangements during the relevant period, when the appellant had a discretion to offer the respondent work and the respondent could accept or reject that work at any time during the period, and
(c) reg 8E does not apply because the respondent did not have “leave” entitlements and respondent’s absence from work prior to May 2022 could not be considered as “unpaid leave.”
The observations are soundly based, and I adopt those conclusions in my reasons for determining that the respondent’s circumstances do not fit within the regulations. I add that, in consideration of the term “unpaid leave” in Stewart, Leeming JA said:
“Although in general a construction which results in a coherent scheme should be preferred, it seems to me that the features of the regime outlined above tend to diminish the utility of notions of coherence, and disfavour straining the statutory language so as to accommodate circumstances which are not addressed explicitly.”[42]
[42] Stewart, [15].
Again, in Stewart, Griffiths AJA observed:
“Interpreting ‘leave’ in the context of the expression ‘period of unpaid leave’, as referring to an entitlement or authorisation which relieves a worker of the performance of their duties by or under an employment contract, statute or industrial agreement, is also consistent with other provisions in the [1987 Act] which describe other types of ‘leave’. For example, s 49(1) provides that compensation is payable in respect of a period of incapacity for work even though the worker has or may receive any payment, allowance or benefit for ‘long service leave’. Similar provision is made in s 50(1) in respect of ‘sick leave’. Both those kinds of leave involve an entitlement or authorisation which excuses a worker from performing their duties of employment.”[43]
[43] Stewart, [136].
Thus, to adopt the approach asserted by the respondent that he was on “unpaid leave” in the relevant period when he did not work would constitute a strain of the statutory language and would be erroneous.
CONCLUSION
Clause 2 of Sch 3 to the 1987 Act does not make provision for the adjustment of the 52-week period during which the respondent’s pre-injury average weekly earnings is calculated. None of the regulations contained in Div 2 of Pt 4 of the 2016 Regulation (reg 8A to reg 8EA) apply to the respondent’s circumstances, so that the respondent’s gross earnings during the 52 weeks immediately prior to the respondent’s injury ($31,292.74, exclusive of any payments of weekly compensation) is to be divided by 52 in order to calculate the respondent’s pre-injury average weekly earnings. The respondent’s pre-injury average weekly earnings figure is $601.78.
DECISION
The Member’s Certificate of Determination dated 11 May 2023 is revoked.
The respondent’s pre-injury average weekly earnings figure is $601.78.
Elizabeth Wood
DEPUTY PRESIDENT
22 April 2024
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