Singh v Taj (Sydney) Pty Limited
[2006] NSWWCCPD 7
•30 January 2006
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Remitted on Appeal: This decision has been the subject of a remitter from the Court of Appeal: see Singh v TAJ (Sydney) Pty Ltd [2006] NSWCA 330; (2007) 4 DDCR 557 and Singh v Taj (Sydney) Pty Limited [2007] NSWWCCPD 152 | |||||
| CITATION: | Singh v Taj (Sydney) Pty Limited [2006] NSWWCCPD 7 | ||||
| APPELLANT: | Gurminder Singh | ||||
| RESPONDENT: | Taj (Sydney) Pty Limited | ||||
| INSURER: | GIO Workers Compensation NSW (Limited) | ||||
| FILE NUMBER: | WCC6776-04 | ||||
| DATE OF ARBITRATOR’S DECISION: | 15 September 2004 | ||||
| DATE OF APPEAL DECISION: | 30 January 2006 | ||||
| SUBJECT MATTER OF DECISION: | Entitlement to weekly compensation; impact of section 253 Migration Act 1958. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Buttar Caldwell & Co | |||
| Respondent: | Hicksons Lawyers | ||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator is confirmed. | ||||
| 2. No order as to costs of the appeal. | |||||
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BACKGROUND TO THE APPEAL
Gurminder Singh (‘the Appellant’) was employed by Taj (Sydney) Pty Limited (‘the Respondent’) as a general hand and truck driver.
On 19 April 2000 whilst unloading groceries from the truck onto a trolley, the trolley tipped and fell onto the Appellant injuring his chest, neck, back and right arm. He attempted to return to work but ceased in about May 2000.
On 12 April 2002, the Appellant received lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) by way of a consent award in respect of 12.5% permanent impairment of his neck, 7.5% permanent impairment of his back, and 5% loss of use of his right arm at or above the elbow. He also received a payment pursuant to section 67 of the same Act.
Weekly benefits were paid voluntarily by the Respondent’s insurer up until 2 February 2004. The insurer wrote to the Appellant on 23 December 2003 advising that those benefits would cease on 2 February 2004 because “… you have recently been granted a Bridging Visa Class E. Under the conditions of this Visa, you are not permitted to work in Australia …”
The Appellant arrived in Australia in 1997 on a visitor visa valid for three months. He subsequently obtained a Bridging Visa Class “A” which entitled him to work.
The Appellant made an application for an Interim Payment Direction on 29 January 2004. The Application was refused by letter dated 12 March 2004.
On 28 April 2004, the Appellant filed an ‘Application to Resolve a Dispute’ seeking reinstatement of weekly benefits compensation and payment of medical, hospital or related expenses.
The matter was listed for a teleconference on 5 August 2004. On that date, the Arbitrator issued a direction that the matter be listed for arbitration on 7 September 2004 and that “the only matter for adjudication on the day will concern the Applicant’s legal eligibility for an award of weekly compensation pursuant to section 40 of the Workers Compensation Act 1987”.
The parties were then invited to file submissions and legal references if they chose to do so.
At the arbitration hearing on 7 September 2004, the Arbitrator entered an award in favour of the Respondent in respect of the Appellant’s claim for weekly benefits. A ‘Certificate of Determination’ issued on 15 September 2004. The Arbitrator’s decision and reasons therefore was given ex tempore, and is recorded at pages 19 – 21 of the transcript.
On 11 October 2004, the Appellant lodged an ‘Application to Appeal Against Decision of Arbitrator’. The Appellant submits as follows:
“1.The Arbitrator erred in law in determining the contract of employment whereby a worker’s [sic] sustained an injury are capped by the provisions of the Migration Act 1958 in particular section 235 such that the worker was denied relief.
2.The Arbitrator erred in law in his determination of the matter in his construction and application of section 40 of the Workers Compensation Act.”
The Appellant’s Application contains a copy of submissions and a list of authorities dated 23 August 2004 which were before the Arbitrator at the hearing on 7 September 2004. The Appellant has filed no other submissions save for a brief statement on the ‘threshold’ issue in the appeal.
The Respondent provided the Arbitrator with written submissions dated 23 August 2004 and has filed further submissions in relation to the appeal on 12 November 2004. Briefly, the Respondent submits that the first ground of appeal is “nonsensical” since it was neither submitted nor found by the Arbitrator that the contract of employment was capped by the provisions of the Migration Act 1958. As to the second ground of appeal, the Respondent submits that the Appellant has not identified any alleged error of law or principle but has merely asserted that the Arbitrator “erred in law” in his application of section 40, and accordingly, the Appellant “… should not be granted leave to rely upon this ground.”
LEAVE TO APPEAL
The appeal was filed within time in accordance with the provisions of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
Clearly, no amount of compensation has been awarded by the Arbitrator, however the amount of compensation at issue on appeal in this matter exceeds $5000.00 and is at least 20% of the amount sought in the claim. In Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, Deputy President Byron determined that “the ‘decision’ in each instance is not restricted to an ‘award’,” and as such, the amount sought in the present claim satisfies the preliminary threshold requirements of section 352(2).
Leave to appeal is granted.
ON THE PAPERS REVIEW
The Respondent submits that “… this is a matter suitable for determination on the papers.”
The Appellant submits that “… the matter could be determined on the papers, however it may be of benefit to the Commission and the Honourable President if oral argument is presented.”
Having carefully read the transcript and the Arbitrator’s reasons for his decision contained therein, the authorities and evidence before the Arbitrator, and the submissions by both parties, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Contract of Employment
The basis of this ground of appeal is not entirely clear. Section 235 of the Migration Act 1958 as amended deals with offences in relation to work. Section 1 provides as follows:
“(1)If:
(a)The temporary visa held by a non citizen is subject to a prescribed condition restricting the work that the non citizen may do in Australia; and
(b)The non-citizen contravenes that condition,
The non citizen commits an offence against this section”.
The section goes on to deal with the impact of a criminal justice stay visa and notes (section 4B) that “an offence against sub-section (1) … is an offence of strict liability”.
As the Respondent points out in its submissions, “… it was conceded at the Arbitration that at the time of his injury, the Applicant was employed pursuant to a valid contract of employment.”
Following his injury, the Appellant was paid compensation until his visa status changed.
Both parties at the arbitration conceded that the Appellant no longer had a work visa (page 3 transcript).
The impact of section 235 of the Migration Act 1958 is such that the Appellant was prohibited from working once his visa status changed and it was a criminal offence for him to engage in employment. Further, it would be an offence for an employer to knowingly employ him in those circumstances.
The Arbitrator noted at page 19 of the transcript that the Appellant’s counsel “… sought to argue that there exists a market for people who are prohibited from working because of reasons of their visa status and that I should have cognisance of that fact …” Examples such as banana picking in Queensland or “cash payment” work were given.
As the Arbitrator then pointed out on page 20 of the transcript, “… for it to be suggested that this Tribunal, or Commission should take into account the proposed breaches of the Federal Legislation by the Applicant as a way of assisting him would be a difficulty”.
The facts as conceded by the parties were that, as at July 2003, the Appellant was no longer entitled to work in Australia due to a change in his visa status. It was not suggested that the contract of employment at the time of injury was an illegal contract. As the Respondent rightly points out, “it was neither submitted nor found by the Arbitrator that the contract of employment was “capped by the provisions of the Migration Act 1958, in particular, section 235”, and I can see no error of law by the Arbitrator on this point as submitted by the Appellant.
The Application of Section 40
The Appellant submits that the Arbitrator erred in law “in his construction and application of section 40 …” of the 1987 Act.
No particular error of law or principle in respect of his reasons is cited.
The Appellant’s entitlement to an award pursuant to section 40 on the grounds of incapacity was not an issue before the Arbitrator. As he pointed out at page 19 of the transcript:
“… It was agreed that the arbitration today would concern the Applicant’s legal eligibility (my emphasis) for me to make an award of weekly compensation in his favour pursuant to section 40 of the Workers Compensation Act”.
In submissions before the Arbitrator, the Respondent conceded that “… the worker had a compensible workers compensation injury and was entitled to weekly compensation benefits up until December 2003”.
As to that “legal eligibility”, both parties relied on a number of authorities in support of their arguments, in particular the decision of His Honour Judge Burke as he then was in Viliami v National Springs, a Division of Endersons Federal Spring Works Pty Limited (1993) 9NSWCCR 453 (‘Viliami’) and Nonferral (NSW) Pty Limited v Taufia (1998) 16NSWCCR 130 (‘Taufia’).
The latter decision can be distinguished since the worker in that case was an illegal immigrant who was subsequently deported back to Tonga. At the time of entering into the contract of employment in this case, the Appellant was not an illegal immigrant.
In Taufia, the worker was successful in obtaining an award of weekly compensation in essence because of an available labour market to him in Tonga. The Court of Appeal (per Cole JA at page 134) noted that:
“Here, the statute did not prohibit an illegal entrant from performing work. Accordingly, it did not prohibit that person from receiving compensation for injuries at work. What was prohibited was performing work without the permission in writing … of the Department of Immigration.”
In this case, the Appellant still resides in Australia.
However, as I said earlier, the terms of section 235 of the Migration Act 1958 make it a criminal offence to engage in work without a valid visa.
The thrust of the Appellant’s submissions before the Arbitrator were that section 40 of the 1987 Act gave the Commission a discretion in determining what a worker would be able to earn in an available labour market. The Appellant in his statement before the Arbitrator, claimed that:
“If I was not injured … I would still be working despite my immigration status. I am aware of a lot of other people in my community that have had their visa status changed. These people in order to survive still find work for cash such as farming and restaurant work...
I believe that I could have found work in Australia despite my immigration status, perhaps work in Queensland on banana plantations … As far as I was aware, my previous employer did not undertake regular visa status checks of its employees”.
The Appellant submitted that, in his case, “… the beneficial aspects of the workers compensation legislation outweigh the public policy considerations of a strict compliance with the migration regulations”.
As Burke J said in Viliami’s case at page 457 “Even if you find that he would have earned something or other by some means or other, it is merely giving an approbation to illegality and I do not think it is the function of this Court to do that.”
Similarly, it is not the function of the Commission to either endorse, condone or simply ignore a breach of section 235 of the Migration Act 1958.
The Appellant submitted that the decision of Viliami was not applicable in the present case. Mr Viliami was an illegal immigrant. When his status was identified by his employer, his employment was terminated. The Appellant was not an illegal immigrant; his visa status was subsequently changed by the Department of Immigration. It is noted that the Appellant is seeking a review of that determination and/or Protection Visa.
Notwithstanding the submissions, the task of the Arbitrator was to determine whether the circumstances of the Appellant’s case gave him a legal entitlement to weekly benefits, and the decision of Viliami is very much on point. The Appellant, it was conceded, was not working, therefore, the alternative of section 40 was applicable, ie, what was he able to earn? Legally, he was not entitled to earn anything, and was precluded by statute under a criminal sanction.
Quoting Burke J again in Viliami (page 457):
“To value his capacity in a reasonably accessible labour market, ignoring for the moment the illegality, is one thing. To value his capacity in a reasonably accessible labour market, when there is no labour market reasonably accessible to him by operation of law, seems to me to end up you can do the mathematics under section 40; … he would probably be earning nothing; for the same reason he is able to earn nothing in any work that he can do in this country now; therefore, the difference of nothing from nothing is nothing.”
Further, His Honour Burke J stated; “The man really has not lost anything because he is precluded from earning anything in any event injured or uninjured. For those reasons, I do not think he is entitled to a weekly payment”.
The Arbitrator had before him the decisions referred to above (page 9 transcript) and both oral and written submissions from both parties. In considering the Appellant’s entitlements, he said this (page 19):
“Despite my feelings of concern for the Applicant’s situation… I am required to make a decision under the law, specifically under the Compensation Act [sic]. The power I have to do that … is under section 40 as interpreted in Mitchell v Central West [sic] that having determined the appropriate amounts the Applicant would have been earning but for the injury and is earning or would be able to earn in suitable employment that I am then able to use my discretion to adjust that amount in the circumstances of the case.
In this case, there is virtually no evidence, I would suggest, that such a labour market exists …”
The Arbitrator concluded (page 20):
“This is an unusual situation, but I believe its analogous to those situations where for some reason the Applicant is either prevented from working or is unable to engage in paid employment, and I would decide this matter on that basis, that the Applicant, currently being prevented from legally engaging in employment, that I am unable under section 40 to determine an amount that he would have been earning but for injury. That amount, because of his immigration status, must be now zero”
The Arbitrator then entered an award in favour of the Respondent in relation to the claim for weekly benefits.
Although there was a claim for medical expenses, it seems that there were none sought at the hearing.
CONCLUSION
Nothing in the Arbitrator’s statements referred to above suggest that he made any error in either his “construction” or “application” of section 40 of the 1987 Act. His decision was consistent with the evidence. The Arbitrator adopted the reasoning of Judge Burke in Viliami, and the adoption of such reasoning discloses no error of law or principle.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order as to the costs of the appeal.
Deborah Moore
Acting Deputy President
30 January 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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