Skilled Group Limited v Briers
[2013] TASSC 40
•5 August 2013
[2013] TASSC 40
COURT: SUPREME COURT OF TASMANIA
CITATION: Skilled Group Limited v Briers [2013] TASSC 40
PARTIES: SKILLED GROUP LIMITED
v
BRIERS, John Desmond
FILE NO/S: 626/2012
DETERMINATION
APPEALED FROM: B v Skilled Group Limited [2012] TASWRCT 20
DELIVERED ON: 5 August 2013
DELIVERED AT: Hobart
HEARING DATE: 7 December 2012
JUDGMENT OF: Tennent J
CATCHWORDS:
Workers' Compensation – Assessment and amount of compensation – Amount of compensation during incapacity – Weekly payments – Total incapacity – Generally – Interpretation of the Workers Rehabilitation and Compensation Act 1988, s69(14).
Workers Rehabilitation and Compensation Act 1988 (Tas), s69.
Roche Bros Pty Ltd v Brown [1989] Tas R 42; HEST Australia Ltd v McInerney (1998) 71 SASR 526, referred to.
Aust Dig Workers' Compensation [374]
REPRESENTATION:
Counsel:
Appellant: P L Jackson
Respondent: J Green
Solicitors:
Appellant: Jackson Tremayne & Fay
Respondent: John Green Lawyer
Judgment Number: [2012] TASSC 40
Number of paragraphs: 28
Serial No 40/2013
File No 626/2012
SKILLED GROUP LIMITED v JOHN DESMOND BRIERS
REASONS FOR JUDGMENT TENNENT J
5 August 2013
On 29 July 2011, John Desmond Briers ("the respondent") was injured while working at the Hobart tip. A truck knocked him down and backed over his legs resulting in injuries to his legs and feet. The respondent duly notified his employer of the injury and claimed compensation. The claim was accepted and payments commenced at the rate of $234.21 per week. In November 2011, payments ceased.
On 14 December 2011, pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s42, the respondent referred his dispute about payments with his employer to the Workers Rehabilitation and Compensation Tribunal ("the tribunal"). At the hearing of the referral before the tribunal, the respondent claimed to be entitled to weekly payments of $580.90, while the employer, Skilled Group Limited ("the appellant"), asserted he was only entitled to $224.84. The tribunal determined on 25 June 2012 that the respondent was entitled to weekly payments of $591.56.
Relevant facts
Commissioner Chandler ("the commissioner"), who constituted the tribunal for the purpose of the impugned decision, set out the relevant facts at pars[2] – [10] of his decision. They were as follows:
"2 The employer is Skilled Group Ltd, a labour hire business based in Somerset. One of its clients is the Hobart City Council ('the Council'). In 2011 the worker was a member of the employer's labour pool. He has work experience as a general labourer and truck driver.
3 The employer first hired out the worker's labour on 15 November 2010 when he began brush cutting work for the Council in the foothills of Mount Wellington. The worker continued with this work through to April 2011, usually working either four or five days per week. By May 2011 the worker had been assigned to labouring duties for the Council at Cornelian Bay where he also worked either four or five days per week. In June and July 2011 he continued his labouring work with the Council, mainly at its refuse site at South Hobart. However, by this time, because of a shortfall in work, he was working significantly reduced hours and there were some weeks when he did not work at all.
4 It was the evidence of Mr Richard Glover, the employer's O.H&S Manager that it was a common practice for the employer to hire labour to the Council in response to a telephone request. When it received such a request it generated a Telephone Enquiry/Order Form which detailed the request including the work to be done, the start time and the anticipated period of hire. The employer also identified on the form the worker to whom it assigned the task. The forms relating to the worker were tendered into evidence. There are nine of them. It is apparent that a form was not created for each period the worker was hired to the Council. The most recent form is dated 14 July 2011 and provides for two days hire. It seems that an order form was not created evidencing the terms of the worker's hire for either of the last two working weeks prior to his injury. It is common ground that the worker was always paid an hourly rate set by an industrial award supplemented by a casual loading. However, the actual award was not identified and I do not have any evidence upon its terms as they relate to the worker's employment.
5 At about 7.35 am on Friday 29 July 2011 the worker was supervising the dumping of waste at the South Hobart tip when a reversing truck knocked him to the ground. It ran over his right leg and left foot, causing factures. The worker then made a claim for compensation for his injuries which was accepted by the employer. It commenced paying compensation including weekly payments which it calculated in the sum of $234.21. I will return in a moment to explain the employer's methodology in its calculation of this sum.
6 By agreement, the parties tendered into evidence documents which detailed the periods worked by the worker and the wages paid. From that material I have been able to create a Table which I reproduce here.
Week Number
End of Work Week Date
Gross Earnings
1
20/11/2010
$817.50
2
27/11/2010
$817.50
3
04/12/2010
$817.50
4
11/12/2010
$731.42
5
18/12/2010
$559.37
6
25/12/2010
$833.57
7
01/01/2011
$559.37
8
08/01/2011
$734.86
9
15/01/2011
$833.57
10
22/01/2011
$833.57
11
29/01/2011
$745.82
12
05/02/2011
$833.57
13
12/02/2011
$833.57
14
19/02/2011
$734.86
15
26/02/2011
$833.57
16
05/03/2011
$833.57
17
12/03/2011
$833.57
18
19/03/2011
$734.86
19
26/03/2011
$680.02
20
02/04/2011
$833.57
21
09/04/2011
$833.57
22
16/04/2011
Nil
23
23/04/2011
$1,204.74
24
30/04/2011
Nil
25
7/05/2011
$745.82
26
14/05/2011
$833.57
27
21/05/2011
$745.82
28
28/05/2011
Nil
29
04/06/2011
$98.71
30
11/06/2011
$186.46
31
18/06/2011
$312.91
32
25/06/2011
Nil
33
02/07/2011
$186.46
34
09/07/2011
$175.49
35
16/07/2011
$372.91
36
23/07/2011
$164.52
37
30/07/2011
$197.42
7 It's relevant for me to make these observations from the Table:
• It covers a period of 37 weeks including the week the worker was injured and became incapacitated.
• The worker worked during each of the first 21 weeks. However, during the following 16 weeks there were 4 separate weeks when the worker did not work at all. The last of these was week 32 ending 25 June 2011.
• The worker worked during each of the last 5 weeks leading up to his injury, albeit for only modest hours.
• The total gross earnings paid to the worker for the 37 week period was $21,493.61.
8 Although not evident from the Table it's agreed that the worker worked 8.5, 8, 17 and 7.5 hours respectively for weeks 33 to 36 inclusive, a total of 41 hours.
9 As I have already noted the employer commenced making weekly payments to the worker in the sum of $234.21. It calculated this amount by totalling the gross wages paid to the worker in the four weeks prior to the week in which he became incapacitated (weeks 33 to 36 inclusive) and dividing it by the total hours worked over those four weeks. This produced an average hourly rate which was then multiplied by the average number of hours worked each week. The result was $234.21 as represented by this calculation;
$194.23+$182.80+$388.45+$171.38 ÷ 41hours = $22.85 x (41÷4 hours) = $234.21
10 However, at the hearing it was acknowledged by Mr Glover that the weekly figures used for this calculation had been incorrectly computed and were not the amounts actually paid to the worker as wages. Instead, Mr Glover accepted that the amounts actually paid for those 4 weeks are the amounts shown in the Table for weeks 33 to 36 inclusive. Applying the same arithmetic to these figures the calculation becomes;
$186.46+$175.49+$372.91+$164.52 ÷ 41 hours = $21.93 x (41÷4 hours) $224.78."
The learned commissioner then made a finding that the respondent had been continuously employed by the same employer for a 21 week period between November 2010 and April 2011. That finding is not and cannot of course be challenged on this appeal. However, the learned commissioner then said at par[19] of his decision:
"This, in my view, is sufficient to satisfy the pre-condition to para (b) making it unnecessary for me to consider whether the worker was continuously employed at any time after his brush cutting work ended and before his injury. I can now move to consider the 'relevant period' as defined by the operative portion of para (b)."
The learned commissioner then noted that, in considering what was the relevant period for the purpose of part (b) of the definition of "relevant period", what he described as the operative part of that definition contained the words "was employed" and was not constrained by the word "continuously" so as to confine the period by which the respondent's average weekly wage was to be calculated to that period of continuous employment between November 2010 and April 2011. He then aggregated all the periods of employment between November 2010 and July 2011 and calculated an average weekly figure by reference to the total time worked.
Legislation relevant to the dispute
The legislation to which the learned commissioner was referring was the Act, s69, and in particular, the definition of "relevant period" in s69(14). The Act, s69, relevantly provides:
"(1) Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person, the compensation payable to him under this Act is–
(a)in the case of the total incapacity of the worker for work, weekly payments equal to–
(i) the normal weekly earnings of the worker; or
(ii) the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity– whichever is the greater; or
(b)in the case of the partial incapacity of the worker for work, weekly payments for the period of that incapacity equal to the difference between the worker's weekly payment calculated in accordance with paragraph (a) and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity.
(2) For the purposes of this section, if the period of employment is 14 days or less, the normal weekly earnings of the worker before the commencement of the period of incapacity are to be taken to be –
(a)equivalent to the normal weekly earnings of another worker who is employed by the same employer and performing comparable work; or
(b)if there is no such other worker, the worker's expected weekly salary calculated on the hourly rate of pay for the work that he or she agreed, or was rostered, to perform in the pay period in which the incapacity occurred.
…
(14) In this section –
normal weekly earnings, in relation to a worker who is incapacitated for work, means the average weekly earnings of the worker during the relevant period;
relevant period means –
(a)if the worker has been continuously employed by the same employer for 12 months or more, the 12 months immediately before the commencement of the period of incapacity; or
(b)if the worker has been continuously employed by the same employer for less than 12 months, the period for which he or she was employed before the commencement of the period of incapacity."
The appeal
The appellant now appeals the determination of the tribunal on the following grounds:
"1 The finding that the Respondent's normal weekly earnings calculated in accordance with s 69(14)(b) of the Workers Rehabilitation & Compensation Act 1988 ('the Act') were $591.56 was a finding that was not reasonably open to the learned Commissioner upon the evidence and upon his findings of fact.
2 The Commissioner erred when he failed to identify in accordance with s 69(14)(b) of the Act the period for which the Respondent was employed before the commencement of incapacity in order to determine the relevant period for the purpose of calculating the Respondent's normal weekly earnings.
3 The Commissioner erred in law by treating all separate and distinct periods for which the Respondent was employed by the Appellant before the commencement of the period of incapacity as constituting the relevant period within the meaning of s 69(14)(b) of the Act.
4 The Commissioner erred when he aggregated separate and distinct periods for which the Respondent was employed by the Appellant as a casual employee and treated the aggregated periods of employment as the relevant period within the meaning of s 69(14)(b) of the Act.
5 The Commissioner erred in failing to consider whether the period of employment for the purposes of section 69 of the Act was a period of 14 days or less and therefore failed to determine whether the respondent's normal weekly earnings were to be calculated in accordance with Section 69(2) of the Act rather than in accordance with s 69(14)(b).
6 The Commissioner erred by proceeding on the basis (apparent from paragraphs [17] to [21] of his reasons) that for the purposes of s 69(14)(b) of the Act, once it was established that at any time before the commencement of the period of incapacity there was a period of continuous employment with an employer of less than twelve months, then all periods of employment before the commencement of the period of incapacity were to be aggregated and used in the calculation of average weekly earnings."
The Act, s63, provides that any party to a proceeding before the tribunal who is aggrieved by any determination of the tribunal "in point of law" may appeal that determination.
The dispute
Before the tribunal, the appellant argued that it was apparent from the facts of this matter that the respondent had not been continuously employed by the appellant and that, as a consequence, his normal weekly earnings were not capable of being calculated by reference to the Act, s69(14). It also argued that there was no, or any sufficient, evidence, which would enable the respondent's normal weekly payments to be calculated by reference to the Act, s69(2). It submitted that, in those circumstances, the calculations set out at par[10] of the tribunal's determination represented a fair and reasonable means of computing the respondent's entitlement, and that therefore the weekly payments should be $224.78.
The respondent, on the other hand, submitted that the facts before the tribunal permitted a finding that he was continuously employed by the appellant for the 37 weeks set out in the table in par[6] of the tribunal's determination. For that period, the respondent received a total of $21,493.61, representing an average weekly amount of $580.90. The tribunal found in favour of the respondent.
Discussion
This appeal raises for consideration the correct interpretation of the provisions of the Act, s69. The section provides a framework for the calculation of payments of compensation to a worker in the event of a compensable injury. While I accept that the focus of this appeal is the interpretation of s69(14), that subsection cannot be read in isolation and has to be considered in the context of the Act in general, and the whole of s69 in particular. Subsection 69(14) is, after all, a definition section and not one which has any independent operation. What also needs to be kept in mind is that subss(2) and (14) were inserted in the Act in 2007 to address a particular difficulty recognized by the courts and Parliament, that is the ability to fairly calculate compensation payments for casual and short-term workers.
Counsel for the respondent submitted that the very fact that s69(14) was now the subject of an appeal meant that the terms of the section were ambiguous. As a consequence he argued that, relying on remarks of Crawford J (as he then was) in Roche Bros Pty Ltd v Brown [1989] Tas R 42 at 55, the legislation should be interpreted in favour of the worker. With respect, the remarks to which counsel referred are not authority for that bald proposition. In fact his Honour said:
"In Wilson v Wilson'sTile Works Pty Ltd (1960) 104 CLR 328 at 335 Fullagar J referred, in his dissenting judgment, to 'the established principle that, where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred'. See also Dodd v Executive Air Services [1975] VicRp 66; [1975] VR 668 per Newton J at 679 and Norris J at 682; and the numerous cases cited in Macdonalds' Workers Compensation in New Zealand, Third Edition, at pp22 and 23.
This so–called principle appears to have developed on the basis that workers compensation legislation is remedial in nature and should therefore be given a broad and liberal, not a narrow and restrictive, interpretation. Care must however be taken before applying it to a particular Act for the over–riding rule of statutory interpretation is to construe the words used in the statute and to determine the apparent intent of parliament from those words.
The principle was expressed by Isaacs J in his dissenting judgment in Bull v Attorney General for New South Wales [1913] HCA 60; (1913) 17 CLR 370 at p384 in the following terms:–
'In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially ... This means, of course, not that the true signification of these provisions should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.'"
Counsel for the respondent also submitted that, because of the ambiguity he submitted existed, provisions of the Acts Interpretation Act 1931, ss8A and 8B, were engaged. The range of the arguments addressed to the Court would indicate fairly clearly that there is an ambiguity in s69(14) which needs to be addressed. What assistance to interpretation can the Acts Interpretation Act offer? Section 8A provides that an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not. Clearly, the Act exists to provide a fair system of compensation for injured workers. Section 8B permits regard to be had to extrinsic material in interpreting legislation. Counsel submitted that the Court should have regard to the second reading speech at the time of the 2007 amendments to the Act. That provided as follows:
"Mr President, it is widely recognised that sections of the act dealing with the computation of weekly payments are unnecessarily complex and need updating. This bill amends the weekly payment provisions to clarify the way in which weekly payments are calculated. The guiding principle is that the initial rate of weekly compensation should be no more or less than the worker would have received if he or she had continued to work. However, the changing nature of employment, particularly the rapid expansion of casual, fixed-term and part-time employment, has highlighted some shortcomings with the current provisions in the act.
The decision of Justice Slicer in Thirroul Investments v Foley highlighted the need for a fairer method of calculating the rate of payment for casual and short-term workers. Currently a worker's rate of weekly payment is based on the average of their earnings over a period of 12 months or their ordinary time rate of pay, whichever is the greater. In the Thirroul case, His Honour held that there was no ordinary time rate of pay applicable to a casual employee in the industry in which the worker was employed. As a result, the worker's few short weeks of earnings were averaged over 12 months to arrive at a weekly rate of compensation. This meant the worker suffered a substantial reduction in the rate of weekly compensation. The decision of Thirroul has been applied generally to all cases involving casual workers, often resulting in unfair outcomes. The changes proposed in the bill redefine normal weekly earning so that a worker's earning are averaged over the period they have been employed by the employer they are with at the time of incapacity. If a worker has been with the same employer for more than 12 months, then earnings are averaged over that period. If the period of employment is less than 12 months, then earnings are averaged over the period employed. Alternative approaches apply to workers who have been employed for less than two weeks at the time of incapacity. The Government has received some criticism from the Australian Lawyers Alliance that the changes represent a shift in methodology from compensating on the basis of lost earning capacity to compensate for loss of actual earnings and will be prejudicial for many workers. The Government rejects this criticism. The proposed changes will overcome serious deficiencies in the current legislation that have caused injustice to workers and, in many instances, the revised methodology will be more favourable to injured workers than the existing methodology.
The proposed methodology is more consistent with the general principle that during a period of incapacity a worker should not receive payments greater than the amount that they would have received if they had continued to work in their usual employment. Basing weekly payments on current earnings also reduces the potential for delay and disputation, as the information should be readily available. This is important, as the act requires an employer to commence making weekly payments immediately, irrespective of whether liability has been accepted."
There is nothing in that speech which, in my view, particularly assists the respondent's argument, although it does assist with what Parliament clearly intended by the introduction of these sections.
There was no dispute in this matter that the respondent was totally incapacitated as a consequence of his injury. The starting point for the purpose of calculating his entitlement to payments of compensation was therefore the Act, s69(1)(a)(i). There was no evidence to suggest that s69(1)(a)(ii) had any relevance to this case. If s69(1)(a)(i) were to apply, the respondent would be entitled to payments equal to his normal weekly earnings. The term "normal weekly earnings" was defined in s69(14) to mean "the average weekly earnings of the worker during the relevant period". The term "relevant period" was then defined. It is here that the problem in this case arises. There were alternative meanings of the term "relevant period" depending on whether the worker was continuously employed by the same employer for 12 months or more, or the worker was continuously employed by the same employer for less than 12 months. In the first case (part (a)) the term "relevant period" was defined to be:
"the 12 months immediately before the commencement of the period of incapacity."
In the second case (part (b)), it was defined to mean:
"the period for which he or she was employed before the commencement of the period of incapacity."
There was no suggestion that the respondent was employed for a period of 12 months or more. Therefore the only part of the definition which might be engaged was that in part (b).
Both parts of the definition of "relevant period" are dependent on a finding that a worker has been continuously employed, either for more or less than 12 months. It is not surprising that, in the case of an employee who was employed for a continuous period of longer than 12 months, Parliament would confine the period of that continuous employment which was relevant for the purpose of calculating average weekly earnings to the most recent 12 month period prior to the occurrence of an injury.
As to the second part of the definition, it does not provide that, if an employee has been employed by an employer for less than 12 months and there was a period of continuous employment at some stage during the overall period that the worker was employed for however long or short, unconnected in time to the date of the injury, then all periods of employment, whether continuous or otherwise, between the date the employee was first employed and the injury, may be aggregated for the purpose of calculating average weekly earnings. That is how the learned commissioner interpreted that part of the definition. With respect, that interpretation is not consistent with Parliament's approach in the first part of the definition. Further, the second part of the definition is clearly designed to deal with a worker who might, for example, have been continuously employed by an employer prior to an injury, but only for, say, a matter of weeks.
The approach taken by the learned commissioner has, in my view, the potential to create an absurdity. If, for example, the respondent had not worked at all between the end of the continuous period of employment ending in April 2011 and the day of his injury, the approach taken by the learned commissioner would have had the result that the respondent would have been paid compensation by reference to what he earned between November 2010 and April 2011. That would produce a clear inconsistency with the principle identified in the second reading speech to the effect that weekly compensation should be no more or less than the worker would have received if he or she had continued to work. The evidence was that at the time of the injury, the respondent had only been working about one day a week. There was no evidence to suggest that was going to change.
In my view, if the worker was not continuously employed at the time of his injury, then s69(14) simply does not allow a calculation of average weekly earnings for the purpose of s69(1)(a)(i).
It follows that the question must be asked as to whether the respondent was employed in a continuous period of employment, however short or long, at the time of his injury? The respondent was employed effectively on a daily hire basis. The employer had no obligation to give him work, and the respondent had no obligation to accept anything offered. The actual work undertaken in weeks 33 to 37, save week 35 which involved two days, involved effectively one day's work each week. The work was organized by a representative of the Hobart City Council "ordering" labour for an identified day or period. For example, on 6 July 2011, the Council "ordered" a labourer for one day that day. The respondent was sent to fill that order. On 14 July, the Council "ordered" two tip attendants for two days for that and the next day. The respondent was one of those sent. There was clearly, from the order forms, no connection between the work done on these occasions. They were discrete contracts of hire rather than a single ongoing contract of indefinite duration (see HEST Australia Ltd v McInerney (1998) 71 SASR 526 at 534). There was no evidence of any actual agreement or arrangement which might override this general concept.
The only conclusion, in my view, is that the respondent was not employed in a continuous period of employment at the time he was injured. Therefore s69(14) has no application, and nor does s69(1)(a)(i). How else might the respondent's entitlement to payment of compensation be calculated consistent with Parliament's intention to address problems in calculating compensation for short-term and casual workers? The only alternative would appear to be s69(2). However another question then arises. To what period does the phrase "period of employment" in s69(2) refer? The phrase is not defined in the Act. If s69(1)(a)(i), aided by the definitions in s69(14), has no application, it is because there was no continuous period of employment for the purpose of s69(14) as I have found that subsection should be interpreted.
Does the phrase "period of employment" therefore mean any period of employment involving the employer and the worker, or does it mean a continuous period of employment? If the provision were to be interpreted to mean any period of employment, rather than a continuous one, the respondent in this case would have been employed for more than 14 days leaving him without a basis for the calculation of compensation payments. The Act, s70, would not assist him.
The alternative of course is to interpret the term, consistent with s69(14) and Parliament's intention to assist workers employed on a short-term or casual basis, to mean continuous employment and continuous employment at the time of the injury. The result would be that, as at the date of his injury, the respondent had no period of continuous employment which exceeded 14 or more days, therefore his entitlement to compensation could be calculated by reference to s69(2). In my view, that is the correct interpretation of s69(2).
Outcome
I am satisfied that the learned commissioner erred in the approach he took to the Act, s69(14). It must follow that his finding as to the respondent's normal weekly earnings was not open to him. While I have not specifically identified in my reasons where I have dealt with each ground of appeal, it must follow from my conclusions as to the interpretation of the Act, s69(2) and (14), that the learned commissioner made an error and that, as a consequence, his determination, as contained in par[24] of his reasons must be, and is, set aside.
Counsel for the appellant urged that, in the event that the commissioner's determination was set aside, I should make an order in place of it given that the available evidence to do so was before this Court. Counsel for the respondent, on the other hand, urged that, if I set aside the determination, I should send the matter back to the commissioner to allow the respondent an opportunity to present evidence to the commissioner of what a similar worker might earn. Although counsel did not refer to it, I infer he meant evidence by reference to the Act, s69(2)(a). Counsel for the appellant said in his written submissions that the evidence was that there was no comparable employee for the purpose of s69(2)(a), and that therefore weekly earnings should have been, and could have been, calculated by reference to s69(2)(b).
I have been through the transcript of proceedings contained in the judge's papers. The first thing which is apparent is that counsel for the respondent was specifically given the opportunity to amend his referral so that it became a referral pursuant to s69(8) and following. He was told that if he did that, the matter would be adjourned because there would need to be evidence of the current weekly earnings of another worker of the same grade or classification as the respondent. After some discussion, counsel elected not to amend his referral and to lead that sort of evidence. He gave no indication as to whether such evidence might be available.
The only witness called for the respondent was the respondent himself. He gave no evidence to suggest there were other workers who were employed by the appellant and performing comparable work. Mr Glover was called for the appellant. He did not give any evidence about this either. It would appear to be a case of an absence of evidence rather than positive evidence to the effect there was no comparable employee. However, given the submission by counsel for the appellant, I will give counsel an opportunity to identify, if it exists, any evidence before the learned commissioner to the effect there was no comparable employee to the respondent.
If it is found there was no such evidence, given the wording of s69(2), it must be accepted that, if the Court or tribunal is to make a determination by reference to s69, it must first have regard to s69(2)(a). Since I do not appear to have any evidence as to this, the matter will need to be returned to the commissioner for the purpose of his taking further evidence as to the existence of another worker for the purpose of s69(2)(a). If the evidence is to the effect there is no such worker, then the commissioner is to determine the respondent's entitlement by reference to s69(2)(b) in the context of my conclusions.
Orders
1 That the appeal is allowed.
2That the determination of the learned commissioner in par[24] of his reasons to the effect that the respondent was entitled to weekly payments in the sum of $591.56 is quashed.
3There is liberty to apply for the purpose of finalising these proceedings in accordance with my findings and the foregoing orders.
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