Swanston v M & T Reeves
[2024] VMC 4
•20 March 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. MAG-CI-230207584
| MIKAEL SWANSTON | Plaintiff |
| v | |
| M & T REEVES PTY LTD | Defendant |
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MAGISTRATE: | Magistrate M J Richards |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 March 2024 |
DATE OF DECISION: | 20 March 2024 |
CASE MAY BE CITED AS: | Swanston v M & T Reeves |
MEDIUM NEUTRAL CITATION: | [2024] VMC 4 |
WORKERS COMPENSATION - Accepted right shoulder injury – Calculation of pre-injury average weekly earnings - Increase in hourly rate - Was the worker promoted or appointed to a different position in the 52 weeks prior to the injury - Workplace Injury Rehabilitation and Compensation Act 2013 s 154(3).
APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr L Howe | Arnold Thomas & Becker |
| For the Defendant | Mr S Scully | Wisewould Mahony |
HIS HONOUR:
INTRODUCTION
This matter proceeded on 7 March 2024. Mr Howe of Counsel appeared for the plaintiff. Mr Scully of Counsel appeared for the defendant.
Mikael Swanston (the plaintiff) was employed as a metal fencing installer with M & T Reeves Pty Ltd (the defendant) from 26 July 2021 until ceasing work due to a right shoulder injury on 10 March 2023.
The plaintiff completed a claim for compensation on 13 March 2023 alleging an injury to his right shoulder throughout the course of his employment with the defendant (DCB 8). The claim was accepted by Allianz Workers Compensation (Victoria) Limited (Allianz) the Workcover insurer of the defendant. By notice dated 15 May 2023, Allianz calculated the plaintiff’s pre-injury average weekly earnings to be $1625.00 based on a weekly salary of $1608.00 plus $17.00 per week for overtime (PCB 99).
The plaintiff disputes the calculation of his pre-injury average weekly earnings. The plaintiff says he was, in effect, promoted by the defendant on or about 22 August 2022 when he received a pay rise in his hourly rate from $34.00 per hour to $45.00 per hour. The plaintiff relied on section 154(3) of the Workcover Injury and Rehabilitation Act (the WIRC Act).
The defendant denied the plaintiff was promoted or appointed to a different position in the 52 weeks immediately before the injury and submitted that section 154(3) of the WIRC Act did not apply.
Counsel for the plaintiff conceded that, if the plaintiff’s argument was not accepted by the Court, the calculation of the plaintiff’s pre-injury average weekly earnings by Allianz was otherwise correct and would not be disputed by the plaintiff.
For the purposes of this hearing, the applicable sections of section 154 of the Act state:
Definition applying to pre-injury average weekly earnings – relevant period
Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to –
(a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks; or
(b) in the case of a worker who has been continuously by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.
…..
If, during the period of 52 weeks immediately before the injury, a worker –
(a) is promoted; or
(b) is appointed to a different position-
(otherwise than on a temporary basis) and, as a result, the worker’s ordinary earnings are increased, the relevant period in relation to the worker begins on the day on which the promotion or appointment takes effect.
…..
The plaintiff gave evidence, and the parties tendered their respective court books. The plaintiff’s court book was exhibit 1. The defendant’s court book was exhibit A.
Evidence of the plaintiff
The plaintiff is 41 years of age.
10. The plaintiff commenced employment with the defendant as a metal fencing installer on 26 July 2021. At the time the defendant agreed to pay the plaintiff $34.00 per hour for 40 hours work per hour plus overtime and a car allowance
11. The plaintiff said he had not previously worked as a fencing installer but learnt on the job. Over time, the plaintiff said he became very proficient in his work and was highly regarded by the defendant as an employee.
12. The plaintiff said he would normally work on his own but would have assistance from another fencing installer employed by the defendant, depending on the size of the fence installation.
13. The plaintiff said he was approached by another fencing company in or about August 2022 called ‘Gate Power Mordialloc’ and was offered $40.00 per hour plus other ‘perks’.
14. The plaintiff said the offer of employment was better than what he was being paid by the defendant and he accepted the job as a fence installer with Gate Power.
15. The plaintiff said he gave notice to the defendant that he was leaving. The plaintiff said the defendant then offered him $45.00 per hour to stay. The defendant told the plaintiff that that was all he could afford to pay. The plaintiff accepted the increase in pay. The plaintiff said he was one of only two fence installers employed by the defendant and it would have difficult for the defendant to replace him if he had left. The plaintiff said the defendant was adamant about retaining him as a fence installer. In the end, the plaintiff said he preferred the stability of working with the defendant.
16. The plaintiff said the defendant commenced paying him $45.00 per hour for 40 hours work per week from 22 August 2022 plus overtime.
17. The plaintiff said, despite the pay increase, his job as a fence installer with the defendant did not change after 22 August 2022.
18. The plaintiff said he continued working for the defendant as a fence installer until ceasing work on 10 March 2023 due to increased pain in his right shoulder. The plaintiff said the pain in his right shoulder had been getting progressively worse since March 2022.
19. The plaintiff said the defendant completed a claim for compensation on his behalf. The claim for compensation was accepted. The plaintiff said he remains in receipt of weekly payments and has not returned to work.
20. The plaintiff said Allianz advised him that his pre-injury average weekly earnings were $1625.00 per week. The plaintiff disagreed with that calculation and said he had been earning $1800.00 per week since 22 August 2022 based on being paid $45.00 for a 40 hour working week.
21. The plaintiff said there was no scope to change his work as a fence installer with the defendant and that this was the only job he could do for the defendant.
Cross-examination of the plaintiff
22. The plaintiff agreed he was one of two fence installers employed by the defendant and that he, and the other fence installer, had the same job and did the same duties.
23. The plaintiff agreed that, before his increase in pay, he shared his work load with the other fence installer. The plaintiff agreed his work load with the defendant remained the same after his increase in pay. The job tasks that were allocated to him did not change after 22 August 2022.
24. The plaintiff said he got the increase in pay because the defendant was desperate to keep him as an employee. At the time he got the pay increase, the plaintiff said he told the defendant he was leaving for another job which paid more money and that he did not want to bargain. The plaintiff said the defendant then offered him $45.00 per hour.
25. The plaintiff said the defendant consisted of 7 to 8 employees. This included himself and the other fence installer. Two employees were boiler makers who worked in the factory fabricating the metal fence parts. Two employees were sales people and did the costings. This included the boss, Matt Reeves. Matt’s wife did the administration work. Everybody worked under Matt, and everybody did the job they were hired to do.
26. The plaintiff said he did the same job that he was hired to do before and after 22 August 2022.
Re-examination
27. The plaintiff said he had no idea what the other employees were paid but said the other fence installer was paid less than him after 22 August 2022.
Submission on behalf of the Defendant
28. Mr Scully submitted that the plaintiff commenced work as a metal fence installer with the defendant on 26 July 2021 and continued working as a metal fence installer after 22 August 2022. There was no change in the plaintiff’s role with the defendant after that date.
29. The plaintiff resigned his employment with the defendant in August 2022 because of a better job offer, and the defendant responded by increasing his hourly rate of pay to retain his services.
30. There was no discussion about what the plaintiff’s role was to be after 22 August 2022 because the plaintiff’s role did not change. The increase in the plaintiff’s hourly rate as of 22 August 2022 did not result in the plaintiff being promoted or being appointed to a different position. There was no advancement by the plaintiff in his role with the defendant which could be considered a promotion and the plaintiff continued performing the same duties.
31. A promotion or change in duties does not result simply because there was an increase in pay for performing the same job. The plaintiff’s position and duties with the defendant remained the same.
32. Accordingly, section 154(3) of the WIRC Act was not applicable.
Submission on behalf of the Plaintiff
33. Mr Howe submitted the facts of the case were not in issue.
34. The issue for the Court to determine was the interpretation of section 154(3) of the WIRC Act.
35. Mr Howe submitted there was no distinction in the Act between duties and pay.
36. Section 154(3)(a) and (b) had alternate meanings with respect to being promoted or being appointed to different duties. Section 154(3)(a) did not require a change of duties as part of being promoted.
37. There was a change in the circumstances of the plaintiff during his period of employment with the defendant. Over time, the plaintiff became a good fencing installer, and this resulted in him being offered an extra $11.00 per hour by the defendant for the plaintiff not to leave his employment.
38. Mr Howe submitted that the hourly increase was a promotion. There was no opportunity for the plaintiff to be promoted otherwise in the defendant’s business. The plaintiff should not be shut out from relying on section 154(3) of the WIRC Act simply because the defendant’s business was small, and the plaintiff had effectively nowhere to go in the defendant’s hierarchy.
39. Section 154(3) of the WIRC Act should not be interpreted against the interests of the plaintiff, given the objectives of the Act, as set out in section 10(3) of the WIRC Act.
40. The plaintiff did not request a pay rise from the defendant. The plaintiff said he did not want to bargain with the defendant. The defendant offered the plaintiff a pay rise which the plaintiff accepted. Mr Howe submitted that, in those circumstances, the plaintiff was being promoted.
41. The defendant’s submission that there had to be a change in the plaintiff’s duties was misguided and was not required by the legislation. An increase in the plaintiff’s pay was sufficient to be deemed a promotion.
42. The relevant period for the calculation of the plaintiff’s pre-injury average weekly earnings should be the period from 22 August 2022 to 10 March 2023. Section 154(3) of the WIRC Act should apply and the plaintiff should not be shut out from the benefits of a pay rise properly offered to him from that date.
Submission in reply on behalf of the Defendant
43. Section 154(3)(a) of the WIRC Act refers to the worker being promoted. This was not applicable to the plaintiff’s situation. He remained a fence installer after 22 August 2022, as he was before 22 August 2022.
44. Section 154(3)(b) of the WIRC Act refers to the worker being appointed to a different position. This was not applicable to the plaintiff’s situation. There was no lateral movement in the plaintiff’s work with the defendant. He remained a fence installer after 22 August 2022, as he was before 22 August 2022.
45. A pay rise was not a promotion if nothing else changed with respect to the plaintiff’s role as a fence installer.
46. Section 154(3) of the WIRC Act was clear and did not apply.
Analysis
47. The facts of this case are uncontroversial. The defendant offered the plaintiff an increase in his hourly rate to prevent him from accepting a job with another fencing company.
48. The plaintiff agreed that his role with the defendant did not change because of the increase in his hourly rate.
49. Based on the evidence of the plaintiff, the Court finds that the plaintiff was not promoted and was not appointed to a different position as of 22 August 2022.
50. For section 154(3) of the WIRC Act to apply, the plaintiff must either have been promoted or appointed to a different position as of 22 August 2022.
51. I do not agree with Mr Howe’s submission that the plaintiff was, in effect, promoted because he got an increase in his ordinary earnings. A promotion involves moving a worker up in a company’s hierarchy. This did not happen. The plaintiff’s role in the hierarchy of the defendant did not change. The plaintiff continued in the same role as a fence installer after 22 August 2022.
52. The objectives of the Act, as set out in section 10(3) do not advance the plaintiff’s position given my findings. I find that the plaintiff has received appropriate compensation in accordance with the legislation.
53. The plaintiff said he initially received a car allowance from the defendant. The plaintiff’s evidence on this point was difficult to follow. It was not clear to the Court whether this payment was made on a regular basis. In any event, Mr Howe did not press the issue to the Court.
Conclusion
54. Given Mr Howe’s concession that the calculation of the plaintiff’s pre-injury average weekly earnings, as set out in the notice of Allianz dated 15 May 2023 was otherwise correct, the plaintiff’s proceeding is dismissed.
55. I invite the parties to provide appropriate orders.
Magistrate M J Richards
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