Secure Domestic Safety Access Pty Limited v Tracey
[2006] NSWWCCPD 71
•1 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Secure Domestic Safety Access Pty Limited v Tracey [2006] NSWWCCPD 71
APPELLANT: Secure Domestic Safety Access Pty Limited
RESPONDENT: John Tracey
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC19949-04
DATE OF ARBITRATOR’S DECISION: 21 June 2005
DATE OF APPEAL DECISION: 1 May 2006
SUBJECT MATTER OF DECISION: Relevance of pleadings in the Commission; procedural fairness; calculation of current weekly wage rate - inclusion of allowances, operation of section 42(6) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers.
REPRESENTATION: Appellant: A.O. Ellison & Co.
Respondent: Taylor & Scott Lawyers
ORDERS MADE ON APPEAL: Paragraph 1 of the decision of the Arbitrator, dated 21 June 2005, is revoked and the following decision is made in its place:
1. That the Appellant Employer pay to the Respondent Worker weekly compensation at the following rates:
(a) From 5 November 2003 to 29 February 2004 pursuant to section 36 of the 1987 Act - $927.20
(b) From 1 March 2004 to 5 May 2004 pursuant to section 36 of the 1987 Act - $878.40
Paragraphs 2 and 3 of the decision of the Arbitrator dated 21 June 2005 are confirmed.
The Appellant Employer is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 15 July 2005 Secure Domestic Safety Access Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 June 2005.
The Respondent to the Appeal is John Tracey (‘the Respondent Worker’).
The Respondent Worker injured his right shoulder on 5 November 2003 whilst engaged in scaffolding work with the Applicant Employer. There was no issue between the parties as regards injury, nor that the Respondent Worker was totally incapacitated during the twenty-six week period the subject of the proceedings.
The Appellant Employer made voluntary payments of compensation to the Respondent Worker pursuant to section 36 of the Workers Compensation Act 1987 (‘the 1987 Act’) during the first twenty-six weeks of incapacity at a rate of $756.00 per week. The Application to Resolve a Dispute filed by the Respondent Worker on 6 December 2004 sought $200.00 per week from 5 November 2003 to 5 May 2004. Correspondence between the parties, which is annexed to the Application, clarified the nature of the dispute as relating to whether, in calculating the current weekly wage rate for the purposes of section 36, it was appropriate to have regard to a “productivity allowance”. This was one of a number of allowances payable to the Respondent Worker pursuant to the Secure Domestic Safety Access Pty. Limited / CFMEU Enterprise Agreement (‘the agreement’) under which the Respondent Worker was remunerated. The claim was that the sum of $200 per week should be paid in addition to the weekly sum of $756.00 already paid by the Appellant Employer.
The Appellant Employer, in its Reply filed on 24 December 2004, described the issues in dispute as being “Whether the Applicant is entitled to productivity allowance during the first twenty-six weeks of incapacity.” and “The application of Section 42(6) of the Workers Compensation Act 1987”. The Submissions filed on behalf of the Appellant Employer on 1 March 2005, in the proceedings before the Arbitrator, dealt only with the question of whether the productivity allowance formed part of the current weekly wage rate, or whether this was precluded by section 42(6) of the 1987 Act.
A Teleconference was held on 14 February 2005. The Submissions filed on behalf of the Appellant Employer in this Appeal state that at that Teleconference “it was effectively argued that the question in dispute was whether section 42(6) applied with regard to a productivity allowance”. The Submissions of the Respondent Worker in this Appeal do “not concede that the issues discussed at the teleconference were limited to the productivity allowance”, however later concede the Respondent Worker “can not positively say that these other allowances were discussed in the teleconference”.
The Appellant Employer’s Submissions in this Appeal state that on 22 February 2005 a copy of the “Enterprise Bargaining Agreement” was forwarded (I take it by the solicitors for the Appellant Employer) both to the Arbitrator and the solicitors for the Respondent Worker. It is not apparent whether the Respondent Worker or his solicitors were in possession of a copy of that document, before that time.
Submissions on behalf of the Respondent Worker in the arbitral proceedings are dated 24 February 2005, and were received by the solicitors for the Appellant Employer on 1 March 2005, according to its Submissions in this Appeal. Those Submissions of the Respondent Worker assert not only that the productivity allowance should be taken into account in determining the current weekly wage rate, but also “the productivity & tool allowance, CW3 competency allowance, and fare (travel) allowance all set out in Appendix B to the EBA”.
The Submissions of the Respondent Worker in this Appeal state that, in the period between 1 March 2005 and the date of the Arbitrator’s determination on 21 June 2005, the Appellant Employer contacted neither the solicitors for the Respondent Worker nor the Workers Compensation Commission “to take issue with this matter and request that it be given the right to respond to the respondent’s submissions”. This is a reference to the submission that allowances in addition to the productivity allowance should be included in calculating the current weekly wage rate. The Appellant Employer has not taken issue with this assertion.
The decision of the Arbitrator was made on the papers without a Conciliation Conference or Arbitration Hearing. In his Statement of Reasons for Decision the Arbitrator described the issue in dispute as being “Has the Applicant been paid the correct amount of his weekly benefit entitlements?” He did not limit the issue solely to the productivity allowance.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 21 June 2005 records the Arbitrator’s orders as follows:
“1. That the Respondent pay to the Applicant weekly compensation at the following rate:
(a) From 5 November 2003 to 1 March 2004 pursuant to Section 36 of the Workers Compensation Act 1987 - $1,081.58
(b) From 1 March 2004 to 5 May 2004 pursuant to Section 36 of the Workers Compensation Act 1987 - $1,022.76.
2. That the Respondent have credit for payments already made.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
The Arbitrator’s reasoning is to be found at paragraphs 20 to 28 of his Statement of Reasons for Decision. He found that the productivity allowance, competency allowance, travel allowance and site allowance which formed part of the Respondent Worker’s remuneration pursuant to the Enterprise Bargaining Agreement were sums he would have been entitled to as his ordinary usual weekly rate. He accordingly found that such sums should not be disregarded, and formed part of the Respondent Worker’s current weekly wage rate.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a)Whether the Arbitrator erred in making an award which included in the current weekly wage rate not only the productivity allowance which was claimed in the Application to Resolve a Dispute, but also the various other allowances, which had not formed part of the pleadings?
(b)Whether the productivity and other allowances were properly taken into account in calculating the Respondent Worker’s current weekly wage rate, or whether such allowances were excluded from this calculation by sub-section 42(6) of the 1987 Act?
ON THE PAPERS REVIEW
Section 354(6) of Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)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 without holding any conference or formal hearing.”
The Appellant Employer submits that a hearing should take place so that the views and concepts raised on the Appeal can be dealt with by way of verbal exchange and presentation, rather than in a written environment, the matter at issue being one of significance. The Respondent Worker “joins the appellant in its submission on this point”. The matter proceeded before the Arbitrator on the papers. Comprehensive written submissions of the parties dealing with the issues raised, both when the matter was before the Arbitrator, and on Appeal, are before the Commission. Neither party has sought to adduce any fresh evidence on the Appeal. Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352(2) states:
“The Commission is not to grant leave to appeal unless the amount of compensation
at issue on the appeal is both:(a)at least $5000 (or such other amount as may be prescribed by the regulations),
and
(b)at least 20% of the amount awarded in the decision appealed against.”
The substance of the submissions made by the Appellant Employer, both at arbitral level and in this Appeal, make clear its contention that none of the allowances included by the Arbitrator in his calculation of current weekly wage rate, should have been so included. I calculate the quantum of such allowances, as found by the Arbitrator, to exceed a sum of $5,000. The sums awarded by way of weekly compensation, after credit is given for the payments of $756.00 previously paid voluntarily, exceed $5,000. If the sums in contention are viewed as a proportion of the overall award made, they exceed twenty per cent of the amount of compensation awarded. The Respondent Worker, in his submissions, does not take issue with the submissions of the Appellant Employer that the threshold requirements of section 352 have been satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section
352(4) of the 1998 Act.The threshold requirements of section 352 have been satisfied, and in
all of the circumstances it is appropriate that leave to appeal be granted.
DISCUSSION AND FINDINGS
The Appeal comes before me as one by way of review, pursuant to section 352(5) of the
1998 Act. The Arbitrator’s decision should only be disturbed if it contains an error of
law, fact or discretion, and then only if the error is such that but for it a different
decision would have been made (South Western Sydney Area Health Service v. Edmonds
[2005] NSWWCCPD 18).
The first two submissions of the Appellant Employer deal with the question of whether
the Arbitrator erred in making the award which he did, given the nature of the relief
claimed in the Application to Resolve a Dispute. Those grounds are expressed in the
following terms:
“1. The first submission on behalf of the Appellant is that the dispute that came before the Arbitrator was quite clearly set out in the Application to resolve a Dispute as being with regard to whether or not a productivity allowance should be taken into consideration or excluded by virtue of the provisions of Section 42(6) of the Workers Compensation Act. It is submitted that the Arbitrator in making his award has exceeded the matters that were the subject of the dispute and dealt with matters that were not raised in the Application as evidenced in the correspondence attached and also with respect to the matters raised at the Teleconference.
2. It is submitted on behalf of the Appellant that in view of the above the award should be set aside. In purporting to make an award in excess of the amount claimed in the Application as being in dispute the Arbitrator has acted beyond the jurisdiction of the Commission.”
The claim as originally made by the Respondent Worker upon the Appellant Employer
is to be found in a letter from the Respondent Worker’s solicitors to the Appellant
Employer dated 28 September 2004. A copy of that letter is annexed to the Application
to Resolve a Dispute. It raises only the appropriateness of excluding the productivity
allowance from the calculation of the current weekly wage rate, and states “Our client
estimates that the productivity allowance was worth somewhere in the vicinity of
$150 - $200 per week to him.” Whilst that letter does not raise the other allowances
ultimately dealt with by the Arbitrator, calculation of the current weekly wage rate, and
the application of section 42(6) of the 1987 Act to the agreement, comprised the subject
matter of the original claim, and the response of the Appellant Employer to it, in its
letter of 30 September 2004.
The extent to which parties are restricted in their conduct of proceedings in the
Commission by the substance of the original claim, and subsequent pleadings, has been
considered in Barbour v. BHP Steel Pty. Limited [2004] NSWWCCCPD 42, where it is
said:
“An application to the Commission should seek to detail the facts of the claim, as it was made upon the employer, and understood by the employer and the insurer prior to coming to the Commission. To insist on strict categorisation of the dispute as to only a ‘pleaded’ frank injury, or a ‘pleaded’ nature and conditions claim, is to impose an artificial technicality on workers compensation disputes that is clearly not intended in the objectives of the Commission (section 367 of the 1998 Act). That is not to say that parties should be at large to raise maters not genuinely in issue between them, or to pursue the ‘element of surprise’ in the advancement of their claims in the Commission. Ultimately Commission proceedings must be governed by principles of procedural fairness. This includes giving a party notice of the case against it and the opportunity to respond, within the reasonable application of the procedural limitations and expectations placed upon the parties by the legislation and the Commission’s Rules.” (per Fleming AP at [37])
A claim had clearly been made in the initial correspondence, for payment of weekly
compensation during the initial twenty-six weeks of incapacity at the appropriate current
weekly wage rate, by reference to the agreement which was in force. This claim, in so far as it exceeded the sum of $756.00 per week, had been denied in correspondence by the Appellant Employer on the basis of section 42(6) of the 1987 Act. This is the claim which was the subject of the proceedings in the Commission, and which the Commission had jurisdiction to deal with. The Arbitrator did not act beyond his jurisdiction in dealing with the claim, notwithstanding that, as ultimately framed, it sought to rely upon some allowances contained in the agreement which had not been raised in the initial correspondence making the claim.
There remains the question of whether procedural fairness was afforded to the Appellant
Employer. It has been said that in “the informal, less technical environment of the
Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties.” (Far West Area Health Service v. Radford [2003] NSWWCCPD 10
(‘Radford’) at [24]). However it is necessary that a party have notice of the case
against it, and an opportunity to respond (Radford at [34]). The Appellant Employer had
been on notice from 1 March 2005, when it received the submissions of the Respondent Worker, that reliance would be placed upon allowances beyond the productivity allowance. Solicitors for the parties were aware from the time of the Teleconference that the Arbitrator was to decide the matter on the papers. The time which elapsed from when the Respondent Worker’s submissions were received by those acting for the Appellant Employer, to the Arbitrator’s decision on 21 June 2005, in my view gave the Appellant Employer sufficient opportunity to respond to the matters raised. The Appellant Employer was not denied procedural fairness in respect of those allowances which were the subject of the submissions of the Respondent Worker.
One of the allowances included by the Arbitrator was an item which had not been submitted upon by the Respondent Worker, and accordingly about which the Appellant Employer did not have notice. This was the site allowance. In so far as this allowance was concerned, the Appellant Employer was denied procedural fairness. The appropriateness of including this allowance in the calculation of current weekly wage rate is dealt with later in these Reasons.
For these reasons the first two submissions raised in the Submissions of the Appellant Employer fail, except in relation to the site allowance.
Submissions numbered three to ten of the Appellant Employer’s Submissions deal with the question of whether the Arbitrator erred in finding the productivity allowance to be part of the Respondent Worker’s ordinary rate of pay, and thus to properly form part of his current weekly wage rate.
Section 42(6) of the 1987 Act is in the following terms:
“(6) In determining a worker’s current weekly wage rate in accordance with subsection (1)(a) or (b) or (4), any amount paid or payable to the worker-
(a) in respect of shift work, overtime or other penalty rates;
(b) under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker; or
(c) to cover special expenses incurred by the worker because of the nature of the worker’s employment,
is, except in so far as the regulations otherwise provide, to be disregarded.”
Both parties in their submissions have referred to the decision of the N.S.W. Court of Appeal in Lismore City Council v. Garland (1992) 26 NSWLR 542 (‘Garland’). That case dealt with the question of whether an industry allowance payable pursuant to an industrial award was to be included in a worker’s current weekly wage rate, or whether it was precluded from the calculation by section 42(6). It was an allowance, in that case, which was payable in a fixed sum each week, and which was not taken into account in calculating the worker’s overtime entitlements if he worked overtime. Mahoney JA., with whose judgment Sheller JA. agreed, said:
“The industry allowance is expressed to be payable ‘per week’ and is a ‘rate fixed by’ the award. And in the relevant sense, it is an ‘ordinary rate’. As the award stipulated and as the stated case accepts, it was ‘payable to the applicant and all outdoor employees of the respondent Council below the classification of ganger grade 4 covered by the said award’. The industry allowance was therefore part of ‘the ordinary rate fixed by’ the award for the work performed by the worker. It was therefore not excluded by s 42(6).” (at 553E).
The trial judge, Burke CCJ., had expressed the issue with beguiling simplicity:
“…A rephrasing of the whole lot of it would be simply what is the minimum rate for a full week, what can a man get paid if he does 38 hours under the award? In the case of the applicant, there is no doubt that he must get the industry allowance. If he works 38 hours a week, that award requires that he will be compensated at a rate inclusive of that $6.50 per week. In my view that $6.50 per week is part of his ordinary pay, his normal pay, his standard pay, his conventional pay, his habitual pay, his customary pay, or any of the multitude of synonyms that can be found for it. And I am therefore of the view that in calculating the applicant’s current weekly wage rate at the relevant time, that element under the award should be taken into account.” (quoted at 544G).
Kirby P. said:
“The word is ‘ordinary’ rate fixed by the award. That does not connote to my mind that such rate must be the ordinary rate used for all purposes. The fact that the rate, including the industry allowance, is not used for calculating overtime and penalty rates does not make it any less the ‘ordinary rate fixed by [the] award’.” (at 551B).
and:
“I would therefore resolve the ambiguity which exists in s 42(6)(b) by reference to the circumstances to which I have referred. They reinforce the conclusion which I have reached on the language alone. They confirm the interpretation adopted by Burke CCJ.” (at 551G).
Whilst the Respondent Worker was paid pursuant to a collective bargaining agreement, rather than an industrial award, there was no issue between the parties that such agreement fell within the definition of an ‘award’ contained in section 46(8) of the 1987 Act, and this is consistent with the decision of the N.S.W. Court of Appeal in Woolworths Limited v. Lister [2004] NSWCA 292 (‘Lister’). The reasoning in Garland is applicable.
The provision in the agreement governing ‘Company Productivity/Tool Allowances’ is in clause 10.2 of the agreement. The productivity allowance is to be paid to all employees covered by the agreement, and is payable weekly, for all hours worked. The productivity allowance is stated to be in lieu of the applicable crib allowance found in the relevant award. The rate of the allowance is governed by Appendix B of the agreement, and is in the following terms:
“The company will pay a company productivity allowance of $3.50 per hour for each hour worked. An additional 50 cents per hour tool allowance will be paid for each hour worked. For administrative convenience an aggregate $4.00 per hour will be paid in lieu of these allowances. This allowance will be paid weekly for each hour worked.”
The Appendix then goes on to list various tools which employees are expected to provide.
The Appellant Employer seeks to distinguish Garland on the basis that the industry allowance dealt with in that case was a fixed figure which did not vary from week to week, and was the same regardless of whether a worker worked overtime or not, that is, it was not taken into account in calculating a worker’s rate of pay for overtime. However this was not determinative in Garland. Rather Kirby P. considered the fact that the industry rate in that case was not taken into account for the calculation of overtime rates was a matter which did not derogate from the argument that it could in any event form part of the ordinary rate of pay:
“The fact that the rate including the industry allowance, is not used for calculating overtime and penalty rates does not make it any less the ‘ordinary rate fixed by [the] award’”. (at 551A)
Although the rate specified in Appendix B of the agreement is an hourly rate, this does not prevent it forming part of the calculation of current weekly wage rate, and is not inconsistent with it forming part of a worker’s ordinary weekly rate (Lister at [30]).
The Appellant Employer also submits that the productivity allowance is payable for hours worked, but is not payable during periods of annual leave or sick leave. On this basis it is said to be variable, and not part of the ‘ordinary rate fixed’. In my view there is nothing in the fact that the productivity allowance is not payable during periods of leave, which would bring it within the exclusion in section 42(6)(b), or otherwise take it outside the definition of current weekly wage rate to be found in section 42.
It is true, as the Appellant Employer submits, that the amount paid each week by way of productivity allowance may vary, depending upon the hours worked, it being payable on an hourly basis. Accordingly it is necessary that only that part of the productivity allowance which relates to a worker’s performance of his ordinary hours, excluding overtime, is included in the current weekly wage rate (in compliance with section 42(6)(a). This was the approach taken by the Arbitrator.
Applying the reasoning in Garland, the productivity allowance formed part of the ordinary remuneration of the Respondent Worker for his ordinary working hours. In my view it was appropriate to treat the productivity allowance as part of the ordinary weekly rate of remuneration of the Respondent Worker fixed under the agreement, and a figure which should be included as part of the current weekly wage rate, The Arbitrator did not err in adopting this approach.
However in my view it is necessary to distinguish between that part of the figure described in Appendix B of the agreement which is productivity allowance, as opposed to that part which is tool allowance. Section 42(6)(c) of the 1987 Act specifically excludes from the calculation of current weekly wage rate amounts paid or payable to the worker to cover special expenses incurred by the worker because of the nature of the worker’s employment. A number of examples of such payments are described in Garland at page 551C. Appendix B makes it clear that employees are expected to supply their own tools. In my view that part of the allowance which constituted a tool allowance, as opposed to the productivity allowance, should be excluded from the calculation of current weekly wage rate, and the Arbitrator erred in failing to apply the exclusionary provision in section 42(6)(c) to the tool allowance component. The “productivity/tool allowance described in Appendix B comprises $3.50 per hour in productivity allowance, and fifty cents per hour in tool allowance. Accordingly the figure allowed by the Arbitrator, and described in his Reasons for Decision at paragraph 27 as “productivity allowance”, should be brought into the calculation of current weekly wage rate at a figure of $3.50 per hour, rather than the figure of $4.00 per hour allowed by the Arbitrator. As previously indicated, it should be calculated on the basis of the Respondent Worker’s ordinary working hours (excluding overtime), which are provided for in clause 21 of the agreement.
It should be noted that the Respondent Worker, in his Submissions before the Arbitrator at paragraph 16, claimed the productivity allowance at a rate of $3.50 per hour, a figure consistent with disregarding the tool allowance component for the purpose of calculating current weekly wage rate.
The Appellant Employer at paragraphs eleven to fourteen of its Submissions contends that the other allowances allowed by the Arbitrator as part of the current weekly wage rate also should have been excluded from that calculation, in part based upon the same arguments put in respect of the productivity allowance, and in part due to the operation of section 42(6)(c). The allowances involved are a competency allowance, a travel allowance, and a site allowance.
The provision for payment of the competency allowance is contained in clause 10.3 of the agreement, and is payable to “ticketed scaffolders with at least 6 months full time experience, covered by this Agreement”. It is payable during periods of annual leave. Appendix B quantifies the hourly sum, and no issue is taken by the Appellant Employer with the rate allowed by the Arbitrator of $2.00 per hour, although of course it does not concede that the sum should be included in the calculation of current weekly wage rate. For the same reasons as applied to the productivity allowance, in my view this sum was properly included by the Arbitrator in his calculation of the current weekly wage rate of the Respondent Worker. Again, it should be included in the calculations only on the basis of the Respondent Worker’s ordinary working hours, excluding overtime, in compliance with section 42(6)(a).
Provision for the travel allowance is to be found at clause thirteen of the agreement. That clause recites the basis on which the travel allowance is payable, and says “the parties agree that Employees may be required to travel to projects located outside the boundaries (as stated above) up to 50 km from their place of residence without incurring excess fees and travel allowances.” It goes on to say “Employees covered by this Agreement shall be paid the fares and travel allowance recorded in Appendix B of this Agreement in lieu of the relevant fares and travelling allowances in the parent Award.” Appendix B contains a corresponding provision headed “Fares Allowance” which says “The Company will pay a fares allowance of $17.45 per day for each day worked (including RDO’s) increasing to $25.00 per day for each day worked (including RDO’s) from 1 July 2005.”
In my view the travel allowance is clearly designed to compensate employees, including the Respondent Worker, for the cost of travel associated with employment, and is accordingly precluded, by section 42(6)(c) of the 1987 Act, from being included in the calculation of current weekly wage rate. At paragraph 24 of his Reasons for Decision the Arbitrator expresses a view that the travel allowance forms part of the Respondent Worker’s “ordinary rate of pay”, but he does not consider the question of whether it was precluded in this regard by the application of S.42(6)(c). In my view the Arbitrator erred in failing to apply section 42(6)(c) to this allowance, and I accept the submission of the Appellant Employer at paragraph 14 of its Submissions in this regard.
The last of the allowances added into the calculation by the Arbitrator was a site allowance of $1.33 per hour. This allowance is not dealt with in the agreement. At clause fourteen of the agreement, at the conclusion of various provisions under the heading “Inclement Weather”, it is provided:
“All other Award conditions shall apply.”
The National Building and Construction Industry Award is described as the “Parent Award” in the definitions section of the agreement. It was not put before the Arbitrator, nor was any particular part of it brought to the Arbitrator’s attention by the parties as being relevant to whether site allowance payments should be included in the calculation of current weekly wage rate. The evidence was silent on the point, and remains so.
The Pay Advices for periods prior to the Respondent Worker’s injury indicate the sums payable by way of site allowance were variable. Sometimes the hours for which site allowance payments are made are equal to the number of hours worked during the pay period, sometimes they are not. In my view it would be impossible to conclude, on the available material, that the payments by way of site allowance formed part of the remuneration of the Respondent Worker as part of his ordinary rate fixed by the agreement.
There is a further difficulty with the inclusion of the site allowance. Not only was it not raised in the Application to Resolve a Dispute, the Submissions of the Respondent Worker filed in the arbitral proceedings do not assert that it should be included in the current weekly wage rate calculation. It is not something which appears to have been pursued by the Respondent Worker as an appropriate inclusion in the current weekly wage rate calculation. The Appellant Employer had no notice that such a sum may have been awarded, and clearly, in so far as this part of the award was not the subject of any prior notice, the Appellant Employer was denied procedural fairness.
Accordingly, the figure representing a site allowance also should be deleted from the calculations of the current weekly wage rate of the Respondent Worker.
DECISION
For the reasons stated above the award in favour of the Respondent Worker should not include the sums allowed for the tool allowance, the site allowance, and the travel allowance. I calculate the appropriate hourly rate, for the purpose of the current weekly wage rate, as consisting of the base figure of $18.90, plus the productivity allowance of $3.50, plus the competency allowance of $2.00, a total of $24.40. During the period from 5 November 2003 to 29 February 2004, when the ordinary working hours of Respondent Worker were found to be thirty-eight per week, this amounts to $927.20 per week. From 1 March 2004 to 5 May 2004, when the ordinary working hours of the Respondent Worker were found to be thirty-six per week, it is a total of $878.40 per week
Paragraph 1 of the decision of the Arbitrator dated 21 June 2005 is revoked, and the following decision is made in its place:
1.That the Appellant Employer pay to the Respondent Worker weekly compensation at the following rate:
(a) From 5 November 2003 to 29 February 2004 pursuant to section 36 of the Workers Compensation Act, 1987 - $927.20
(b) From 1 March 2004 to 5 May 2004 pursuant to section 36 of the Workers Compensation Act, 1987 - $878.40.
Paragraphs 2 and 3 of the decision of the Arbitrator dated 21 June 2005 are confirmed.
COSTS
The Appeal has succeeded in part. I calculate the reduction achieved by the Appellant Employer to be less than $5,000.00. As a consequence the Appeal is considered to be unsuccessful due to the operation of section 345(3) of the 1998 Act, and I order that the Appellant Employer pay the Respondent Worker’s costs of the Appeal, as agreed or assessed.
Michael Snell
Acting Deputy President
1 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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