The State of South Australia (in Right of the Department for Health and Ageing (SA Ambulance Service)) v Dohnt
[2021] SASCFC 33
•26 August 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE STATE OF SOUTH AUSTRALIA (IN RIGHT OF THE DEPARTMENT FOR HEALTH AND AGEING (SA AMBULANCE SERVICE)) v DOHNT & ORS
[2021] SASCFC 33
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Parker and the Honourable Justice Livesey)
26 August 2021
WORKERS’ COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES
WORKERS’ COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
This appeal arose out of questions of law determined by the Full Bench of the South Australian Employment Tribunal concerning reviews of “average weekly earnings” for three workers under s 45(1)(a) of the Return to Work Act 2014 (SA) (the 2014 Act).
In answering those questions, the Full Bench concluded that an increase in a worker’s salary and allowances involved “a change in a component” of the worker’s remuneration for the purposes of determining average weekly earnings, with the result that those earnings should be increased on review. The Full Bench also concluded that, for the purposes of s 15(15)(a) of the 2014 Act, a worker’s “weekly wage” includes allowances.
Held per Parker J (Kourakis CJ agreeing), allowing the appeal:
1. The conferral of the specific but confined power under s 47(3)(a)(ii) of the 2014 Act to adjust weekly payments for seriously injured workers on account of changes to remuneration under an award or enterprise agreement necessarily precludes the operation of the broader but more general power granted by s 45(1)(a) to achieve the same end.
Held per Livesey J (Kourakis CJ and Parker J agreeing), allowing the appeal:
1. Where provisions in earlier legislation are reproduced in later legislation, the same meaning and effect is generally intended.
2. Apart from confining s 47 of the 2014 Act to seriously injured workers, the replication of ss 37, 38 and 39 of the Workers Rehabilitation and Compensation Act 1986 (SA) as ss 45, 46 and 47 of the 2014 Act demonstrates that no change in meaning or effect was intended.
3. The difference in meaning and effect between “rates” and “components” of remuneration did not change with the enactment of the 2014 Act. The distinct areas for the separate operation of these concepts was not elided.
4. The appeal must be upheld on the basis that increases in rates and allowances did not amount to a change in any component of remuneration used to determine average weekly earnings for the purposes of a review conducted under s 45(1)(a) of the 2014 Act.
5. As s 45 of the Act does not apply, there is no scope to consider whether s 5(15)(a) operates in the manner found by the Full Bench.
Return to Work Act 2014 (SA) s 3, s 5, s 45, s 46, s 47; South Australian Employment Tribunal Act 2014 (SA) s 22; Workers Rehabilitation and Compensation Act 1986 (SA) s 4, s 37, s 38, s 39; Workers Rehabilitation and Compensation (Miscellaneous Provisions) Act 1991 (SA); Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 (SA); Workers Rehabilitation and Compensation Regulations 2010 (SA), referred to.
Chenoweth v TransAdelaide [2001] SAWCT 29; Corporation of the City of Norwood, Payneham and St Peters v Minister for Transport and Infrastructure & Ors [2021] SASC 97; Dohnt, Jones & Kimber v Department for Health and Ageing (SA Ambulance Service) [2019] SAET 90; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; Mitsubishi Motors Australia Limited v Love (1992) 59 SASR 339; Mitsubishi Motors Australia Limited v Wilson [2006] SAWCT 24; R v Wallis; Ex Parte Employer’s Association of Wool Selling Brokers (1949) 78 CLR 529; Royal Adelaide Hospital v Khammash [2001] SAWCT 66; The Corporation (Murcat Pty Ltd) v Schlein (1993) 174 LSJS 221, discussed.
Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Broken Hill Associated Smelters Pty Ltd v Fowler (1980) 23 SASR 149; Broken Hill Associated Smelters Pty Ltd v Gray (1993) 169 LSJS 297; Campbell v M & I Samaras Pty Ltd; Yaghoubi v BDS People Pty Ltd (2011) 110 SASR 57; Cleggett v Coca Cola Amatil [1995] SAWCAT 156; Coastal Ecology v City of Charles Sturt [2017] SASC 136; Francese v Adelaide City Corporation (1989) 51 SASR 522; General Motors Holden’s Limited v WorkCover Corporation (1991) 55 SASR 395; Hocking v The Southern Greyhound Racing Club Inc (1993) 61 SASR 213; K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Martin v Employers Mutual Ltd (2012) 112 SASR 436; Mitsubishi Motors Australia Limited v Sosa [1995] SASC 5084; Mitsubishi Motors Australia Limited v Wilson [2006] SAWCT 24; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Return to Work SA v Robinson (2018) 130 SASR 394; WorkCover/Employers Mutual Limited v DP World Adelaide Pty Ltd and Anor [2010] SAWCT 19, considered.
THE STATE OF SOUTH AUSTRALIA (IN RIGHT OF THE DEPARTMENT FOR HEALTH AND AGEING (SA AMBULANCE SERVICE)) v DOHNT & ORS
[2021] SASCFC 33Full Court: Kourakis CJ, Parker and Livesey JJ
KOURAKIS CJ: I would allow the appeal for the reasons given by Parker J and by Livesey J. I would join in the orders proposed by Livesey J.
PARKER J: I agree with Livesey J that the appeal should be allowed and the answers of the Full Bench set aside for the reasons stated by his Honour. However, I make the following additional observations on the question of statutory interpretation.
Sections 45 and 46 of the Act are intended to deal with the adjustment of weekly payment in different circumstances and on a different basis. That is apparent from both the terms of the respective provisions and also the legislative history referred to by Livesey J.
A review under s 45 may be conducted on the initiative of the Corporation or at the request of the worker. Such a review is directed at the calculation of the average weekly earnings of the worker and therefore also their notional weekly earnings. The purpose of the review is to determine whether an adjustment should be made due to a change in a component of the worker’s remuneration used to determine average weekly earnings. The review may take account of a change in a component constituted by a non-cash benefit. The review may also take into account a change in equipment or facilities provided or made available to the worker if they are relevant to average weekly earnings.
Section 45(5) provides that an adjustment under s 45 will, subject to two provisos, operate from the date determined by the Corporation. The first proviso is that the date of effect may be an antecedent date but not a date that is before the date of the change on which the adjustment is based. The second proviso is that the adjustment cannot result in a retrospective reduction in weekly payments. However, s 45(5)(a) otherwise permits either an increase or a reduction in weekly payments as the outcome of a review.
Section 45 applies to all workers, whether they are seriously injured or not. That is an important distinction from s 47 which only applies to seriously injured workers. The latter category of worker is not subject to the 104-week limit on weekly payments otherwise imposed by s 39(3) of the Act.
The circumstances in which a review must be conducted under s 47(1) are materially different from the requirements of s 45(1). Section 47(1) imposes a duty upon the Corporation to conduct a review during the course of each year of incapacity if a seriously injured worker is incapacitated for work, or appears likely to be so incapacitated, for more than one year. The purpose of the mandatory review is to review the weekly payments for the purpose of making an adjustment to the amount of those payments.
Section 47(3) specifies two different bases for an adjustment. Under s 47(3)(a)(i) the adjustment must be based upon changes on the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker’s injury arose. The alternative basis for an adjustment arises under s 47(3)(a)(ii) but only following an application made by the worker in the designated manner and form. In this instance, the adjustment may be effected on the basis of changes in the rates of remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time their injury occurred.
The date of effect of an adjustment under s 47 also significantly differs from that applicable under s 45. If the adjustment is based upon rates of remuneration payable to workers generally, or in a particular kind of employment, then the adjustment will take effect from the end of the year of incapacity in which the review is made. However, if the adjustment is based upon a change in the rate of remuneration under an award or enterprise agreement, it will be made from the date of the Corporation’s decision backdated to the date of the relevant change in remuneration.
The significant differences in the circumstances in which a review may, or must, be conducted, and the timing of any increase (or decrease) in payments is a strong indication that s 45 and s 47 were intended to operate in different circumstances. Furthermore, s 47(3)(a)(ii) very specifically deals with the making of an adjustment following changes in the rates of remuneration under an award or enterprise agreement. The fact that such adjustments are specifically provided for in the case of seriously injured workers, but not otherwise, is a very powerful indication that adjustments based upon variations in remuneration under an award or enterprise agreement were not intended to be permitted under s 45 even though such a pay increase might arguably be regarded as “a change in a component of the worker’s remuneration” in terms of s 45(1)(a).
I recently considered in Corporation of the City of Norwood, Payneham and St Peters v Minister for Transport and Infrastructure & Ors[1] the application of the principle identified by Gavan Duffy CJ and Dixon J in Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia[2] and by Dixon J in R v Wallis; Ex Parte Employer’s Association of Wool Selling Brokers.[3]
[1] [2021] SASC 97 at [179] and [195] to [204].
[2] (1932) 47 CLR 1 at 7.
[3] (1949) 78 CLR 529 at 550.
In Anthony Horden Gavan Duffy CJ and Dixon J stated the principle to be as follows:[4]
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
[4] (1932) 47 CLR 1 at 7.
To like effect Dixon J stated in Wallis that:[5]
[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
[5] (1949) 78 CLR 529 at 550.
In both Anthony Horden and in Wallis the High Court found that a provision that stipulated the manner in which an arbitrator was to deal with a particular issue precluded that issue from being dealt with in accordance with more general provisions provided elsewhere in the statute.
I noted in the Norwood case[6] that in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[7], Gummow and Hayne JJ conducted a detailed review of Anthony Horden and subsequent authorities, including Wallis. Their Honours held in Nystrom that:[8]
[W]hat the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restrictive powers was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
[6] Ibid at [195].
[7] (2006) 228 CLR 566
[8] Ibid at [59].
I found in Norwood that the important point which emerges from this observation by Gummow and Hayne JJ is that a specific power will only restrict the operation of a general power when the specific power deals with a matter that is a subset of the matter dealt with under the general power.[9]
[9] [2021] SASC 97 at [196].
To summarise the matter, the Anthony Horden principle operates where the availability or use of a power directed at a specific subject matter is restricted in some way. That will preclude the exercise of an unrestricted, or less restricted, general power that is otherwise ostensibly available to deal with the same subject matter.
Section 45(1)(a) confers a general power to adjust weekly payments following “a change in a component of the worker’s remuneration”. For the purposes of the present analysis, I will assume that a variation in remuneration under an award or enterprise agreement can be regarded as “a change in a component of the worker’s remuneration” for the purposes of s 45(1)(a).
Section 47(3)(a)(ii) confers a specific power to adjust weekly payments in the same circumstances. However, and most importantly, the availability of that specific power is confined to seriously injured workers. As I have previously observed, there are also other differences between the availability and operation of the power to vary weekly payments under ss 45 and 47.
Because the specific power to vary weekly payments on account of changes in the rates of remuneration under an award or enterprise agreement is confined to seriously injured workers, I consider that the Anthony Horden principle precludes an adjustment to weekly payments under s 45 for an injured worker who is not a seriously injured worker.
Section 47 confers a specific power to adjust weekly payments for seriously injured workers on account of changes to remuneration under an award or enterprise agreement. The conferral of the specific but confined power under s 47(3)(a)(ii) necessarily precludes the operation of the broader but more general power granted by s 45(1)(a) to achieve the same end.
For these reasons, I agree with Livesey J that the appeal should be allowed and the answers of the Full Bench set aside. The matter should be remitted for determination in accordance with the reasons stated by Livesey J and my additional observations.
LIVESEY J:
Introduction
This appeal arises out of questions of law determined by the Full Bench of the South Australian Employment Tribunal pursuant to s 22 of the South Australian Employment Tribunal Act 2014 (SA), on agreed facts, concerning reviews of “average weekly earnings” for three workers under s 45(1)(a) of the Return to Work Act 2014 (SA) (the Act).
The first question on this appeal concerns whether, and to what extent, a change in the “rate of remuneration” effected by an enterprise agreement after the date of a work injury comes within the statutory concept of “a change in a component of [a] worker’s remuneration”, within s 45(1)(a) of the Act. The second question is whether the meaning of “weekly wage” in s 5(15)(a) of the Act includes allowances.
The Full Bench concluded that an increase in a worker’s salary and allowances involves “a change in a component” of the worker’s remuneration for the purposes of determining average weekly earnings, with the result that those earnings should be increased. The Full Bench also concluded that the reference to “weekly wage” in s 5(15)(a) includes allowances.[10]
[10] Dohnt, Jones & Kimber v Department for Health and Ageing (SA Ambulance Service) [2019] SAET 90 (Hannon and Farrell DPJJ and Lieschke DPM).
Intervention – does s 45 apply?
Pursuant to s 200(b) of the Act, the Return to Work Corporation of South Australia (the Corporation) intervened, contending that s 45 of the Act, on its proper construction, had no application in the circumstances of this case.
In the submission of the Corporation, s 47 of the Act exhaustively provides for the adjustments which may be made due to “changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker’s injury arose”. On this contention, no adjustment can be made pursuant to s 45(1)(a) of the Act concerning the rate of remuneration relevant to the calculation of average weekly earnings. The corollary is that it is unnecessary to address whether, in the application of s 45, one may have regard to s 5(15)(a) in order to find that “weekly wage” without allowances. Accordingly, as each of the Full Bench’s answers was based on the false premise that s 45 did apply, the appeal must be allowed.
Although this contention had not previously been agitated, the Corporation submitted that this Court is not bound by any assumption made by the parties about the proper construction of the Act,[11] and that this Court ought entertain its contention, particularly because it is directed to the correct answers to the questions of law referred to the Full Bench for determination.[12]
[11] Return to Work SA v Robinson (2018) 130 SASR 394, [68]-[69] (Kourakis CJ and Blue J).
[12] Hocking v The Southern Greyhound Racing Club Inc (1993) 61 SASR 213, 215-216 (King CJ), 219‑222 (Debelle J, with each of whom Millhouse J agreed); Coastal Ecology v City of Charles Sturt [2017] SASC 136, [290]-[294] (Blue J): the intervenor “can make submissions on the issues that are raised and take a position in relation to those issues that differs from that taken by the parties”, though an intervenor cannot introduce new issues.
For the reasons that follow, this contention should be accepted and the appeal allowed.
The grounds of appeal and questions of law
The appellant’s two grounds of appeal are as follows:
1The Full Bench erred in law in the construction of s 45(1) of the Return to Work Act 2014 by concluding that an increase in salary rates applicable in a period subsequent to the date of the relevant injury amounted to a change in a component of the worker’s remuneration used to determine average weekly earnings (see Full Bench’s reasons at [55]-[59], [111] and [117]). Properly construed, such an increase in salary rates did not amount to a change in a component of the worker’s remuneration used to determine average weekly earnings.
2The Full Bench erred in law in the construction of s 5(15)(a) of the Return to Work Act 2014 by concluding that the “weekly wage” includes allowances to which workers were then entitled at the relevant date (see Full Bench’s reasons at [41]-[42], [59] and [98]-[99]). Properly construed, the “weekly wage” is limited to the amount a worker was then entitled by reason of their classification and/or position at the relevant date.
These grounds are to be addressed in the context of the way in which the Full Bench answered various questions of law, only some of which are now relevant. Relevantly, the Full Bench answered questions 1, 2 and 4 as follows:
Questions of law in respect of the workers Dohnt and Jones:
(1)In respect of incapacity for work resulting from the work injuries sustained in 2015, and on the facts set out in the statement of agreed facts document, whether the adjustment to the AWE rate under s 45 of the Return to Work Act 2014 is to be based on:
1.1 the hourly rate effective as at the date of the work injury; or
1.2 the average hourly rate over the 12 month period before the date of the work injury?
(2)In respect of incapacity for work after the full pay period on or after 31 December 2015 resulting from the work injuries sustained in 2015, and on the facts set out in the statement of agreed facts document, whether the NWE rate set as a result of the answer to 1 above should be further adjusted under s 45 of the RTWA having regard to the increase in the hourly rate effective from the first full pay period on or after 31 December 2015?
Answers:
(1)Each AWE is first to be recalculated based on application of Enterprise Agreement salary rates (including by reference to retrospective increases from the date they took effect and to other entitlements) to produce the average weekly amount that the workers earned during the period of 12 months preceding the relevant date. Second, the entire weekly wage including allowances to which the workers were then entitled at the relevant date under the 2017 EA is to be identified. The adjusted rate of NWE is the higher of the two amounts.
(2)Yes
…
(4)On the facts as set out in the statement of agreed facts document, whether the NWE rate applying to the work injury from 1 July 2015 should be adjusted under section 45 of the RTWA having regard to the increases in the hourly rate effective from the first full pay period on or after 31 December 2015 and 31 December 2016?
Answer:Yes
Relevant background
Messrs Kimber, Dohnt and Jones (the respondents or the workers) suffered compensable work injuries on 25 September 2012, 5 August 2015 and 22 September 2015, respectively.
Because Mr Kimber’s work injury occurred before 1 July 2015, he alone had an “existing injury” within the meaning of clause 29(1) of the Transitional Provisions within Part 10 of Schedule 9 to the Act.
None of the respondents are “seriously injured” workers within the meaning of s 21 of the Act.
For the purposes of determining the entitlement of each respondent to weekly payments under s 39 of the Act, it was necessary to determine their “notional weekly earnings”, defined by s 4(1) of the Act to be either the “average weekly earnings” or, where an adjustment has been made under the Act, the “average weekly earnings” as adjusted, but in any case, not so as to exceed twice State average weekly earnings.
The term “average weekly earnings” means the earnings determined in accordance with s 5 of the Act.
The ‘dominant principle’ under s 5(1) is that “average weekly earnings” means the average weekly amount earned during the 12 months preceding the date of the relevant injury.
There are further specific principles. For example, by s 5(6) if, by reason of the shortness of time during which the worker has been in employment, it is not possible to arrive at a fair average, then average weekly earnings may be determined by other specified means.[13] In addition, by s 5(15)(a), if an injured worker’s remuneration was, at the date on which the relevant injury occurs, covered by an award or industrial agreement, the average weekly earnings will not be less than the weekly wage to which the worker was then entitled under that award or industrial agreement.
[13] Section 5(6) provides that if it is not possible to arrive at a fair average: “the worker’s average weekly earnings may be determined by reference to the average weekly amount being earned by other persons in the same employment with the same employer who perform similar work at the same grade as the worker or, if there is no person so employed, by other persons in the same class of employment who perform similar work at the same grade as the worker.”
Central to the questions arising on this appeal is the proper operation of the scheme established under the Act for the adjustment of weekly payment amounts. It will, in due course, be necessary to address the effect of precursor provisions which were in place before the Act commenced operation on 1 July 2015.
In overview, by s 45 of the present Act, the calculation of average weekly earnings may be adjusted in specified circumstances, including where there is a change in “a component of the worker’s remuneration used to determine average weekly earnings”. The adjustment takes effect as an adjustment to the worker’s “notional weekly earnings” and it may therefore increase or reduce weekly payments. By s 45(5), the adjustment may operate from an antecedent date but not from a date before the date of the change on which the adjustment is based. The precursor to this provision was s 37 of the Workers Rehabilitation and Compensation Act1986 (SA) (the 1986 Act).
Under s 46 of the Act, the amount of weekly payments may be reviewed. If the compensating authority finds that the worker’s entitlement to weekly payments has ceased, or has increased or decreased, the compensating authority must adjust or discontinue the weekly payments accordingly, see s 46(5). The precursor to this provision was s 38 of the 1986 Act.
Annual economic adjustments to weekly payments may be made under s 47. However, since the introduction of the Act, these adjustments may only be made in favour of seriously injured workers. They are not generally available. These adjustments are based on changes in the rates of remuneration payable to workers generally, unless the worker applies for an adjustment to be made on the basis of changes in rates or remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time of injury, see s 47(3)(a). The precursor to this provision was s 39 of the 1986 Act.
In this case, the respondents were, in the 12 months preceding their injuries, paid salary and allowances in accordance with the terms of the SA Ambulance Service Enterprise Agreement 2011. By clause 13.3 of that agreement:
A subsequent enterprise bargaining salary increase (quantum unspecified) will apply from the first full pay period on or after 31 December 2014.
On 3 May 2017, the SA Ambulance Service Enterprise Agreement 2017 commenced (the 2017 Agreement). The 2017 Agreement provided for three retrospective salary and allowance increases of 2.5% each. These took effect on 3 January 2015, 3 January 2016 and 3 January 2017, respectively.
After the 2017 Agreement commenced, each respondent applied for a review of the calculation of their average weekly earnings under s 45(2).
The appellant, as the self-insured employer and compensating authority, determined that the entitlements of Messrs Dohnt and Jones had increased by reason of the retrospective pay increase that took effect from 3 January 2015 because that increase changed the amount each earned within the period of 12 months preceding each relevant work injury. The appellant recalculated the average weekly earnings amount by applying the increase from the date the increase took effect. The appellant otherwise declined to adjust each respondent’s entitlements.
It may be seen that, by this determination, it was assumed that s 45 permitted a recalculation of average weekly earnings where a retrospective pay increase increased the applicable rates of remuneration. The parties were divided over the means by which this should be implemented.
The respondents contended that the increase should have been applied to the full 12-month period preceding each relevant work injury, and not merely from the date the increase took effect.
As for the other retrospective increases, the appellant took the view that the increase took effect from dates after the relevant work injury and therefore could not affect the average weekly amount earned during the 12 months preceding the date of injury. In other words, they could not be used to alter the operation of the ‘dominant principle’.
In the result, no adjustment was made to the calculation of Mr Kimber’s average weekly earnings and only the 3 January 2015 increase was used to adjust the average weekly earnings of Messrs Dohnt and Jones. No adjustment was made to their average weekly earnings by reason of the later increases which took effect on 3 January 2016 and 3 January 2017.
The respondents challenged these reviews and four questions of law were referred to the Full Bench under s 22 of the South Australian Employment Tribunal Act 2016 (SA).
The decision of the Full Bench
The Full Bench answered various questions of law, some of which are not now relevant to this appeal. Relevantly, the Full Bench construed s 45(1)(a) of the Act as follows:
1.Where an enterprise agreement changes salary or allowance rates applicable to a period after the date of the relevant work injury, the amount of notional weekly earnings should be adjusted under s 45 having regard to any increase in the rates effective from the date that the new rates took effect.
2.In addition, for workers with an “existing injury”, where an enterprise agreement changes salary or allowance rates applicable after 1 July 2015, the amount of notional weekly earnings should be adjusted under s 45 in the same way.
3.The first two propositions involve construing s 45(1)(a) as permitting a review of average weekly earnings to include salary increases effective after the date of the relevant work injury.
4.Where an enterprise agreement retrospectively changes the amount earned in the period of 12 months preceding the date of the relevant work injury, the adjusted average weekly earnings (and therefore the adjusted rate of notional weekly earnings) calculated under s 45 comprises the entire weekly wage, including allowances to which the worker was then entitled at the date of the relevant injury under the enterprise agreement. This involved reading the reference in s 5(15)(a) to “weekly wage” as including all allowances.
In the course of his reasons, Hannon DPJ (with whom Farrell DPJ agreed) expressed an initial doubt about whether s 45 of the Act was relevant:[14]
Upon considering the applicability of s 45 of the RTWA to the facts in these matters, I had an initial concern that the changes in question might not be properly characterised as changes to a component of remuneration used to determine average weekly earnings, but rather as changes to rates of remuneration which could now only be reviewed under s 47 of the RTWA, and only with respect to seriously injured workers. However, as noted above, the changes made by the 2017 EA were to the base annual salary. No doubt that directly impacted on overtime and penalties and the like, but as explained by Lieschke DP, there were other components of the remuneration, albeit minor, which were not subject to the increases. The calculations made by the respondent appear to have been on the basis of a new hourly rate as a component of the remuneration. As such, I accept that the salary changes can be described as changes to a component of each workers’ remuneration. I note that the respondent expressly conceded that, with respect to Dohnt and Jones, the salary increase with retrospective effect to a date before their injuries was a change in a component of remuneration used to determine their average weekly earnings.[15]
[14] Dohnt, Jones & Kimber v Department for Health and Ageing (SA Ambulance Service) [2019] SAET 90, [26].
[15] Respondent’s Outline of Submissions, [20].
As can be seen, despite this initial doubt, his Honour ultimately accepted that changes in the rate of salary could properly be described as changes to a “component” of each worker’s remuneration.
Though this conclusion is challenged by the Corporation, it was not really challenged by the appellant. The appellant’s challenge was confined to the extent to which s 45(1)(a) permitted the calculation to be reviewed. It submitted that this did not permit “an ab initio review of the approach taken to the setting of average weekly earnings”.[16] Although the appellant accepted that a retrospective change could be made, it could not operate before 3 January 2015, when the 2017 Agreement increases took effect. However, according to Hannon DPJ:[17]
I do not agree with the [appellant’s] submission that the s 45 review process is confined to the extent contended. Whilst it is the case that such a review is for a limited purpose, as described above, involving adjustment by reference to specified changes, it is a review under s 45(1) of the calculation of “the average weekly earnings…”. In these particular cases, it was a review under s 45(1)(a) for the purpose of making an adjustment due to a change in a component of the worker’s remuneration “used to determine average weekly earnings”. In my view any adjustment of the calculation of average weekly earnings should be made consistently with the objective of s 5 of the RTWA to arrive at a fair average, and to afford protections based on remuneration covered by an award or industrial agreement.
[16] Dohnt, Jones & Kimber v Department for Health and Ageing (SA Ambulance Service) [2019] SAET 90, [29].
[17] Dohnt, Jones & Kimber v Department for Health and Ageing (SA Ambulance Service) [2019] SAET 90, [31].
Nonetheless, the Full Bench rejected the respondents’ proposition that the increased hourly rate could be applied to the entirety of the 12-month period. The Full Bench found that this would be contrary to the restriction under s 45(5)(b) that the adjustment not operate from a date before the date of the change on which the adjustment is based.[18]
[18] Dohnt, Jones & Kimber v Department for Health and Ageing (SA Ambulance Service) [2019] SAET 90, [32].
The 1986 Act
In order to evaluate the competing contentions on this appeal, it is first necessary to address the relevant legislative history,[19] before turning to the context in which s 45(1)(a) of the Act is now found.[20]
[19] K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 313 (Gibbs CJ): “[t]he legislative history of that section makes it clear that…”, 317-318 (Mason J).
[20] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).
When originally enacted, the 1986 Act determined average weekly earnings based on a different ‘dominant principle’, being what “the worker could reasonably have expected to earn during the period of disability”.[21] That is, the former ‘dominant principle’ looked to the future,[22] rather than to the past, when setting average weekly earnings.
[21] Francese v Adelaide City Corporation (1989) 51 SASR 522, 526 (King CJ, with whom Legoe and Millhouse JJ agreed).
[22] Broken Hill Associated Smelters Pty Ltd v Gray (1993) 169 LSJS 297 (Legoe J, with whom Matheson and Duggan JJ agreed).
It was held in The Corporation (Murcat Pty Ltd) v Schlein that a worker was entitled to not less than the weekly wage stipulated under the relevant award and, on the facts of that case, that “overtime and special features of the worker’s work [must] be taken into account” under s 4(7)(a),[23] provided the other requirements for overtime were satisfied under s 4(8).[24] Whether that represents a correct view of the effect of s 4(7)(a) was not addressed in argument before this Court and it is not now necessary to express a concluded view on whether overtime was relevantly addressed under a general provision (s 4(7)(a)), as well as a specific provision (s 4(8)). Certainly, because overtime was otherwise addressed under the 1986 Act, it was not necessary for the Full Bench in Schlein to decide whether “overtime and special features” of work properly came within s 4(7)(a) which, at that time, provided:
… where a disabled worker’s remuneration was, at the relevant date, covered by an award or industrial agreement, the worker’s weekly earnings shall not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement …
[23] The Corporation (Murcat Pty Ltd) v Schlein (1993) 174 LSJS 221, 227.
[24] See the discussion regarding s 4(8) and Mitsubishi Motors Australia Limited v Love (1992) 59 SASR 339, below.
Section 4 did not then refer to “non-cash benefits”. The term “notional weekly earnings” was defined as “average weekly earnings or, where an adjustment was made under the Act taking account of changes in levels of earnings or in the value of money (or both), the average weekly earnings as so adjusted”. Sub-section 4(7)(a) provided that where a disabled worker’s remuneration was, at the relevant date, covered by an award or industrial agreement, the worker’s average weekly earnings would not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement.
Overtime was a “prescribed allowance” under s 3(c) which was incorporated into the concept of “notional weekly earnings” by s 4(8). The circumstances in which overtime might be included in the computation of average weekly earnings as a “prescribed allowance” were addressed by this Court in Francese v Adelaide City Corporation.[25]
[25] Francese v Adelaide City Corporation (1989) 51 SASR 522, 526-527 (King CJ, with whom Legoe and Millhouse JJ agreed).
Section 38 permitted the annual review of weekly payments. The Corporation could conduct a review “on its own initiative”, and had to do so when requested by a worker or an employer. In addition, if a worker’s incapacity continued for more than one year, the Corporation was required to conduct a review in the second year, and each subsequent year, of incapacity. The Corporation was not required to comply with a request for a review if it was made within three months of the completion of an earlier review. The Corporation could not begin a review without first giving the worker notice and inviting a written representation within a reasonable time.
If, on a s 38 review, the Corporation found that the worker’s entitlement to weekly payments had “ceased, or increased or decreased”, the Corporation was required to “adjust or discontinue the weekly payments to reflect that finding.” Clearly enough, many s 38 reviews were concerned with changes in a worker’s capacity for work, and therefore the worker’s entitlement to weekly payments.[26]
[26] See, for example, General Motors Holden’s Limited v WorkCover Corporation (1991) 55 SASR 395, 404 (Olsson J); Mitsubishi Motors Australia Limited v Sosa [1995] SASC 5084 (King CJ); Mitsubishi Motors Australia Limited v Wilson [2006] SAWCT 24, [28]-[34]: “The review envisaged by s 38 is a review of the worker’s entitlement to weekly payments under s 35 of the Act, not of the amount of average weekly earnings fixed by s 4”.
Section 39 permitted annual economic adjustments to be made to weekly payments. Where a worker’s incapacity continued for more than one year, the Corporation was required to conduct a review in each year of incapacity. The Corporation could not begin a review without first giving the worker notice and inviting a written representation within a reasonable time. Adjustments under s 39(2) could only be based on “changes in the rates of remuneration” in two defined categories, the second of which concerned “changes in rates of remuneration prescribed by an award or enterprise agreement”:
(2)An adjustment under this section—
(a) must be based on—
(i)changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker‘s injury arose; or
(ii)if the worker applies, in a designated manner and a designated form, for the adjustment to be made on the basis of changes in rates of remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time of the occurrence of the injury—changes in those rates of remuneration…
In addition, at the time of repeal, under s 39(2)(b) these adjustments operated either from the end of the year of incapacity in which the review was made (in the case of an adjustment under s 39(2)(a)(i)) or from the Corporation’s decision, “back-dated to the date of the relevant changes in rates of remuneration” (in the case of an adjustment under s 39(2)(a)(ii)).
In 1991, s 4 was amended to introduce the concept of a “component” so as to permit overtime to be included in defined circumstances when setting average weekly earnings:[27]
[27] Workers Rehabilitation and Compensation (Miscellaneous Provisions) Act 1991 (SA) (No 4 of 1991).
Average weekly earnings
4.Section 4 of the principal Act is amended by striking out subsection (8) and substituting the following subsection:
(8) For the purposes of determining the average weekly earnings of a worker-
(a)any component of the worker’s earnings attributable to overtime will be disregarded unless-
(i)the worker worked overtime in accordance with a regular and established pattern;
(ii)the pattern was substantially uniform as to the number of hours of overtime worked; and
(iii)the worker would have continued to work overtime in accordance with the established pattern if he or she had not been disabled;
and
(b)any prescribed allowances will be disregarded.
(emphasis added)
This Court addressed these provisions in Mitsubishi Motors Australia Ltd v Love.[28] In that case, a worker regularly worked overtime on a Saturday, but otherwise only worked overtime irregularly. Overtime was assumed to be a “component” of earnings. The issue was whether all of the overtime should be disregarded because it was not all “a regular and established pattern [which] was substantially uniform as to the number of hours worked”, or only that part of the overtime which was worked irregularly. Cox J explained that only the irregular overtime was to be disregarded:[29]
Paragraph (a) begins with the words “any component”, and it is possible that this refers not necessarily to the whole of a worker’s overtime but to so much of the overtime as meets the pattern requirements of sub-pars (i) and (ii). (Strictly speaking, a component under par (a) is a part or an ingredient of a worker’s earnings attributable to overtime, not of the overtime itself, but nothing appears to turn on that distinction and it is cumbersome and unnecessary, for present purposes, to keep using the longer formula.) On that view of the matter an appropriate part, or component, of this respondent’s overtime was the overtime he worked each Saturday. Such overtime formed a regular and established pattern that was substantially uniform as to the number of hours of overtime worked. So to interpret the amendment invites the criticism, perhaps, of manufactured uniformity — a component of overtime is to be defined as that portion of overtime which, when taken with others like it, will constitute a regular and established and substantially uniform pattern. Precisely what additional characteristics or limitations may be implied in the term “component” it is not easy to discern. It is enough for this case that the earnings from the respondent’s regular Saturday morning overtime are readily identifiable as a component for the purpose of par (a). To apply the word “component” in this way, with respect to a complete shift or session of overtime, does not strain the language of the paragraph to breaking point and avoids the more extreme and, as it seems to me, unfair result for which the appellant contends. I think the Court should interpret the amendment accordingly. Whether earnings with respect to a part only of any session of overtime could in any circumstances constitute a component does not have to be decided in this case.
I expect that par (a), in its present form, will continue to cause difficulty and concern, as there is an obvious tension between giving effect to the 1991 amendment — it must have been intended to make a change in the existing law — and producing a practical result that is even-handed and just to those who work overtime. It would help, if I may respectfully say so, if Parliament were to make its policy and precise intention on this subject clearer.
(emphasis added)
[28] Mitsubishi Motors Australia Limited v Love (1992) 59 SASR 339.
[29] Mitsubishi Motors Australia Limited v Love (1992) 59 SASR 339, 342-343 (Cox J, with whom King CJ and Matheson J agreed).
Following the Clayton Review,[30] major changes to the scheme for setting and adjusting weekly payments were introduced in 2008. Under s 4(1) the ‘dominant principle’ was altered. Whilst this principle had been intended “to establish realistically … earnings at the time of … injury”,[31] it was now to be based on the average earned during the twelve months preceding the date of disability or injury:
… the average weekly earnings of a disabled worker is the average weekly amount that the worker earned during the period of twelve months preceding the relevant date in relevant employment.
[30] Various of the amendments introduced following this review were considered in Campbell v M & I Samaras Pty Ltd; Yaghoubi v BDS People Pty Ltd (2011) 110 SASR 57, [34]ff (Gray and Sulan JJ) (medical panels) and in Martin v Employers Mutual Ltd (2012) 112 SASR 436, [4]ff (White J, with whom Doyle CJ and Anderson J agreed) (the entitlement to weekly payments).
[31] WorkCover/Employers Mutual Limited v DP World Adelaide Pty Ltd and Anor [2010] SAWCT 19, [36] (McCusker DPJ), contrasting Broken Hill Associated Smelters Pty Ltd v Fowler (1980) 23 SASR 149, 155 (White J) and Broken Hill Associated Smelters Pty Ltd v Gray (1993) 169 LSJS 297.
Express provision was made for non-cash benefits.[32] The basis for including overtime was also altered.
[32] The classes of which were prescribed by Regulation 7 of the Workers Rehabilitation and Compensation Regulations 2010 (SA).
Section 4 continued to provide that where a disabled worker’s remuneration was, at the relevant date, covered by an award or industrial agreement, the worker’s average weekly earnings would not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement.[33] As well, the definition of “notional weekly earnings” was amended to recognise that “where an adjustment has been made under this Act to take account of changes in levels of earnings, the value of money or remuneration (including under s 37) or other relevant factors, or one or more of these) – the worker’s average weekly earnings as so adjusted.” [34]
[33] Sub-section 4(15)(a) of the 1986 Act (as repealed).
[34] Section 3 of the 1986 Act.
A new s 37 was also introduced in 2008 with the intention of addressing limitations identified in the operation of ss 38 and 39.[35] It is appropriate to identify these limitations which had emerged in a handful of cases before the Tribunal, before s 37 was introduced.
[35] A previous s 37, with different subject matter, was deleted with effect from 25 May 1995 by the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 (SA). For examples of the limitations identified, see Chenowith v TransAdelaide [2001] SAWCT 29; Royal Adelaide Hospital v Khammash [2001] SAWCT 66; Mitsubishi Motors Australia Limited v Wilson [2006] SAWCT 24.
The first was Chenoweth v TransAdelaide which concerned whether s 39 of the 1986 Act permitted an adjustment of weekly payments to reflect changes to an award which introduced “a fortnightly aggregate salary”. Under this new award salary, there was “a fixed rate of weekly payments, inclusive of payment for ordinary hours of work, annual leave loading, shift penalties, rostered daily overtime, ‘grey days’ and additional time worked in lieu of gazetted leave”, but there was no change made to the relevant base rate of remuneration.[36] A majority of the Full Bench held that an adjustment made under s 39(2)(a)(i) was “limited to increases or decreases in the hourly rates of remuneration which form the basis of setting the original notional weekly earnings rate”.[37] The majority rejected the invitation to reassess notional weekly earnings to reflect what the worker’s earnings “probably would have been had he not suffered the compensable disability”:[38]
In our view, that approach is erroneous. In WorkCover Corporation of SA v Marina(1996) 66 SASR 241 at 249 - 50, Doyle CJ suggested that other than in the case of overtime the Act did not permit the recalculation of average weekly earnings. With respect, that tentative view must be correct. As His Honour observed at 250:
“... the Act is one which necessarily involves sacrifices of flexibility in favour of certainty, and is one which does not attempt to match exactly entitlements and current events.”
It has always been a basic tenet of workers compensation legislation that once pre-injury earnings have been determined, that determination “was res judicata and remained immutable thereafter ...”: Coalcliff Colleries v Campbell (1964) 81 WN (Pt 2) NSW 318 at 320, per Sugermann J (see also Coalcliff Colleries v Campbell(1965) 112 CLR 349).
S[ection] 39 is couched in terms of an adjustment to weekly payments. It is not a means by which to recalculate the assessment of weekly notional earnings. It simply provides for increases or decreases in the amount of compensation payments payable to an incapacitated worker to reflect rises and falls in wages, as the case may be.
[36] Chenoweth v TransAdelaide [2001] SAWCT 29, [2.18].
[37] Chenoweth v TransAdelaide [2001] SAWCT 29, [15], [28] (Jennings PJ and Gilchrist DPJ).
[38] Chenoweth v TransAdelaide [2001] SAWCT 29, [21]-[23] (Jennings PJ and Gilchrist DPJ).
In dissent, McCusker DPJ held that the phrase “changes in the rates of remuneration payable” should be interpreted broadly, relying on an earlier decision of Stanley J concerning an adjustment to weekly payments to reflect that a new award required employers to make superannuation payments:[39]
This decision is significant. It rejected a narrow meaning of the word “rate”. Superannuation is a distinct component of the worker’s remuneration.
[39] Chenoweth v TransAdelaide [2001] SAWCT 29, [39]-[41], citing WB and LT Ashby & Co v Baker (1991) 3 WCATR 9. Somewhat curiously, in a later decision involving the same parties the same Full Bench ultimately upheld the minority decision on grounds that are, respectfully, difficult to follow: Chenoweth v TransAdelaide [2003] SAWCT 62. In the later decision, the application was made pursuant to s 39(2)(a)(i) and the Full Bench held that its earlier decision did not address what was meant by the phrase “changes to the rates of remuneration” in s 39(2)(a)(ii). That view, however, is not consistent with the reasoning set out above. Nonetheless, the Full Bench appears to have accepted that “changes in the amount of pay being paid for the work performed” under an award permitted an adjustment to be made, see [20]-[22]. Whatever the potential breadth of this later ruling, it does not directly affect the meaning of the term “component”.
Secondly, in Royal Adelaide Hospital v Khammash, a hospital orderly had his average weekly earnings calculated by reference to a remuneration package which included shift penalties.[40] After their work was outsourced, the orderlies who elected to remain with the employer (like the worker) were redeployed, but lost their shift work. The Full Bench held that s 39 did not allow the employer to reduce the worker’s weekly payments because s 39 only permitted an “adjustment to the amount of compensation being paid to an incapacitated worker to reflect rises or falls in wages”.[41]
[40] Royal Adelaide Hospital v Khammash [2001] SAWCT 66.
[41] Royal Adelaide Hospital v Khammash [2001] SAWCT 66, [11].
Neither of these cases permitted changes to what were best described as components of remuneration, because s 39 was only concerned with changes made to the “rates” of remuneration. In particular, “the s 39 process is not a repeat of the methodology of determining the notional weekly earning rate pursuant to s 4 and s 35 of the Act and … the considerations under the s 39 process are different”.[42]
[42] Chenoweth v TransAdealide [2001] SAWCT 29, [13] (Jennings PJ and Gilchrist DPJ).
Finally, a broad view of the potential operation of s 38 was rejected in Mitsubishi Motors Australia v Wilson, where the Full Bench rejected the proposition that it “gave a compensating authority, an employer and a worker a right to seek a review of the amount of weekly payments [whether upwards or downwards] on unrestricted grounds”.[43] The cessation of an afternoon shift, which had been taken into account when calculating average weekly earnings, provided no basis to review weekly payments under s 38 because it was a change to a remuneration “component”,[44] not a change to remuneration “rates”. The review contemplated by s 38 “is a review of the worker’s entitlement to weekly payments under s 35 of the Act, not of the amount of average weekly earnings fixed by s 4” and Parliament had not “ma[d]e it clear that the estimation process envisaged by s 4 could be adjusted in light of subsequent events”.[45]
[43] Mitsubishi Motors Australia Limited v Wilson [2006] SAWCT 24, [14].
[44] See Mitsubishi Motors Australia Limited v Wilson [2006] SAWCT 24, [3], [37], [40], where the word “component” is used.
[45] Mitsubishi Motors Australia Limited v Wilson [2006] SAWCT 24, [29].
It is against this background of Tribunal decisions between 2001 and 2006 that s 37 was introduced in 2008.[46] Under s 37, adjustments could now be made by the Corporation “on its own initiative or at the request of the worker” due to changes from the original arrangements. These were permitted where there had been a change either, “in a component of the worker’s remuneration used to determine average weekly earnings (including a component constituted by a non-cash benefit” (s 37(1)(a)) or, “in the equipment or facilities provided or made available to the worker (if relevant to average weekly earnings)” (s 37(1)(b)).
[46] The second reading speech before the 2008 amendment did not identify the mischief to which the new s 37 was directed, and the explanation of clauses simply described the operation of s 37, using the same expression, “due to a change in a component of the worker’s remuneration used to determine average weekly earnings”: Parliament of South Australia, House of Assembly Debates, 28 February 2008, p 2318.
Adjustments made under s 37 took effect as an adjustment to notional weekly earnings, which may therefore increase or reduce weekly payments.[47]
[47] Sub-section 37(5)(a) of the 1986 Act.
Under s 37(5)(b), an adjustment could be backdated to some extent, though not to a date before the date of the change. That is, the adjustment:
… operates from a date determined by the Corporation (which may be an antecedent date but not a date that is before the date of the change on which the adjustment is based and not so as to result in a retrospective reduction in weekly payments).
Accordingly, it may be seen that the scheme implemented by the 1986 Act, immediately before the commencement of the Act in 2015, reflected the following features.
First, the ‘dominant principle’ when setting average weekly earnings was the average earned during the twelve months preceding the date of disability or injury.
Second, there were two mechanisms by which weekly payments might be adjusted. Under ss 38 and 39, reviews could be conducted (broadly) annually to address whether a worker’s entitlement had “ceased, or has increased or decreased”, or where there had been “changes in the rates of remuneration payable”, including under “an award or industrial agreement”.
Third, and by contrast, there was a new mechanism for the review of average weekly earnings (and therefore notional weekly earnings) under s 37 where there had been a change “in a component of the worker’s remuneration used to determine average weekly earnings”, or where there had been a change “in the equipment or facilities provided or made available to the worker”.
Fourth, the adjustments permitted by s 37 were confined to two categories, in circumstances where these categories had been “used to determine average weekly earnings” under the dominant principle. Fifth, it was plainly intended that all of these mechanisms would operate harmoniously, and so as to complement one another, in the context of a scheme which permitted compensation for weekly payments to continue, in some cases, over many years until retirement.
Finally, and despite the apparent potential breadth of the words used in s 37(1)(a), the concept of “a component of the worker’s remuneration” was not the same as “changes in the rates of remuneration payable” under “an award or industrial agreement” under s 39(2)(a). Those concepts were separately introduced at different times into different sections for different reasons. Each was clearly intended to have a distinct area of operation. Were it otherwise, there would have been no need to retain s 39: its potential area of operation had been overtaken and addressed by s 37. In fact, and to the contrary, Parliament retained each provision, no doubt intending that these three provisions would continue to address their separate areas of operation.
Accordingly, and whilst in a sense it might be said that what is conveyed by the phrase “a change in the rates of remuneration payable” comes within the words “a change in a component of the worker’s remuneration”, the use of the particular term, “rates of remuneration” in s 39(2) indicates a discrete area of operation when compared with the use of the general term, “component of … remuneration”, in s 37(1)(a). It is necessary to give effect to the use of the different words “rates” and “component”.[48] The relevant principle of statutory construction is as follows:[49]
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
[48] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [71] (McHugh, Gummow, Kirby and Hayne JJ): “it was … ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’”.
[49] Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J). See also David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265, 276 (Gummow J, Brennan CJ, Dawson, with whom Gaudron and McHugh JJ agreed).
It is significant that the Parliament did not use the same term “rates of remuneration”, still less “remuneration”, in s 37(1)(a). Parliament used a different word. Parliament used the word “component”. These different words were intended to have different areas of operation. That is, where s 39(2) uses the particular term, “rates of remuneration”, that necessarily excludes the operation of the general term, “component of … remuneration”, when used in s 37(1)(a).
The Act as introduced in 2015
It is now appropriate to set out the terms of the counterpart provisions of the new Act, passed in 2014 and commencing in 2015.
The definition of “average weekly earnings” in s 4 of the 1986 Act was largely replicated in s 5 of the Act. Relevantly, the s 5 definition of “notional weekly earnings” is as follows:
notional weekly earnings in relation to a worker means—
(a)the worker’s average weekly earnings; or
(b)where an adjustment has been made under this Act to take account of changes in levels of earnings, the value of money or remuneration (including under section 45, 46 or 60) or other relevant factors (or 1 or more of these)—the worker’s average weekly earnings as so adjusted but not so as to exceed in any case twice State average weekly earnings;
The key provisions, ss 45, 46 and 47, largely reflected the final form in which ss 37, 38 and 39 appeared in the 1986 Act:[50]
[50] No equivalent to s 45(9) of the Act appeared in s 37 of the 1986 Act.
45—Adjustments due to change from original arrangements
(1)The Corporation may, on its own initiative or at the request of the worker, review the calculation of the average weekly earnings of a worker (and therefore the notional weekly earnings of a worker) for the purpose of making an adjustment due to—
(a) a change in a component of the worker’s remuneration used to determine average weekly earnings (including a component constituted by a non-cash benefit); or
(b) a change in the equipment or facilities provided or made available to the worker (if relevant to average weekly earnings).
(2)A request by a worker must be made in a designated manner and a designated form.
(3)Before the Corporation begins a review under this section, the Corporation must give the worker notice, in a designated form—
(a) informing the worker of the proposed review; and
(b) inviting the worker to make written representations to the Corporation on the subject of the review within a reasonable time specified in the notice.
(4)If the Corporation finds on a review under this section that there has been a change that warrants an adjustment contemplated by subsection (1), the Corporation may make the relevant adjustment.
(5) An adjustment under this section—
(a) will take effect as an adjustment to the worker’s notional weekly earnings (and may therefore increase or reduce weekly payments under this Division); and
(b) operates from a date determined by the Corporation (which may be an antecedent date but not a date that is before the date of the change on which the adjustment is based and not so as to result in a retrospective reduction in weekly payments).
(6)For the purposes of a review under this section, the Corporation may, by notice in writing to the worker to whom the review relates, require the worker to furnish any information that the Corporation determines to be relevant to the review.
(7)If a worker fails to comply with a requirement under subsection (6) within the time allowed in the notice, the Corporation may suspend weekly payments to the worker.
(8)On completing the review, the Corporation must give notice, in a designated form, setting out the Corporation’s decision on the review, and the rights of review that exist in respect of the decision to—
(a) the worker; and
(b) the employer from whose employment the compensable injury arose.
(9)This section does not limit the powers of the Corporation under any other section of this Act.
46—Review of weekly payments
(1)Subject to subsection (3), the Corporation may, on its own initiative and must if requested by a worker or an employer, review the amount of the weekly payments made to a worker who has suffered a work injury.
(2)A request by a worker or employer must be made in a designated manner and a designated form.
(3)The Corporation is not required to comply with a request for a review under subsection (1) if the request is made within 3 months from the completion of an earlier review.
(4)Before the Corporation begins a review under this section, the Corporation must give the worker notice, in a designated form—
(a) informing the worker of the proposed review; and
(b)inviting the worker to make written representation to the Corporation on the subject of the review within a reasonable time specified in the notice.
(5)If the Corporation finds on a review under this section that the worker’s entitlement to weekly payments has ceased, or has increased or decreased, the Corporation must adjust or discontinue the weekly payments to reflect that finding.
Example—
For example, if the Corporation finds on the review that there has been a change in the extent of the worker’s incapacity with a consequent change in the amount the worker is earning or could earn in suitable employment, the Corporation must adjust the weekly payments to reflect the change in entitlement.
(6)For the purposes of a review under this section, the Corporation may, by notice in writing to a worker, who is receiving weekly payments—
(a) require the worker to submit to an examination by a recognised health practitioner nominated by the Corporation; or
(b) require the worker to furnish evidence of the worker’s earnings.
(7)If a worker fails to comply with a requirement under subsection (6) within the time allowed in the notice, the Corporation may suspend weekly payments to the worker.
(8)On completing the review, the Corporation must give notice, in a designated form, setting out the Corporation’s decision on the review, and the rights of review that exist in respect of the decision, to—
(a) the worker; and
(b) the employer from whose employment the work injury arose.
(9)This section does not limit the powers of the Corporation under any other section of this Act.
47—Economic adjustments to weekly payments for seriously injured workers
(1)If a seriously injured worker is incapacitated for work or appears likely to be incapacitated for work for more than 1 year, the Corporation must, during the course of each year of incapacity, review the weekly payments for the purpose of making an adjustment to the amount of those payments under this section.
(2)Before the Corporation begins a review under this section, the Corporation must give the worker notice, in a designated form—
(a) informing the worker of the proposed review; and
(b) inviting the worker to make written representations to the Corporation on the subject of the review within a reasonable time specified in the notice.
(3) An adjustment under this section—
(a) must be based on—
(i)changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker’s injury arose; or
(ii) if the worker applies, in a designated manner and a designated form, for the adjustment to be made on the basis of changes in rates of remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time of the occurrence of the injury—changes in those rates of remuneration; and
(b) operates—
(i)in the case of an adjustment under paragraph (a)(i)—from the end of the year of incapacity in which the review is made;
(ii) in the case of an adjustment under paragraph (a)(ii)—from the Corporation’s decision on the application, back-dated to the date of the relevant changes in rates of remuneration.
(4)If the Corporation makes an adjustment to weekly payments under this section, the Corporation must give notice in writing, in a designated form, to the worker—
(a) containing such information as the regulations may require as to the grounds on which the adjustment is being made; and
(b) informing the worker of the worker’s rights to have the Corporation’s decision reviewed.
As foreshadowed, it is necessary to address the statutory context in which these provisions now operate.
The most important change wrought by the Act was the curtailment of the entitlement to compensation by way of weekly payments of income maintenance to a maximum period of 104 weeks or two years from the date on which incapacity first occurs, see s 39(3) of the Act.[51]
[51] Associated with this change was the curtailment of the entitlement to compensation for medical expenses to a maximum period of three years. See, for example, s 33(20) and Redman v Return to Work Corporation of South Australia [2021] SASCA 25.
That change was accompanied by the introduction of the concept of the “seriously injured worker” under s 21 of the Act. A worker “whose work injury has resulted in permanent impairment and the degree of whole person impairment has been assessed under Division 5 for the purposes of this Act to be 30% or more” is designated a “seriously injured worker” under s 21(2) of the Act.
The curtailment of the entitlement to compensation by way of weekly payments to a maximum period of 104 weeks or two years does not apply to seriously injured workers, see s 39(1) of the Act. Accordingly, only “seriously injured workers” now have the prospect of receiving compensation by way of weekly payments of income maintenance until retirement which, in some cases, may be over a period of many years, if not decades.
When one then turns to ss 45, 46 and 47 of the Act, the major change is that economic adjustments to weekly payments under s 47 are now confined in favour of seriously injured workers alone. Other workers, whose entitlements are limited by s 39(3) to a maximum of 104 weeks or two years, no longer qualify for economic adjustments, whether annually at the instigation of the Corporation or at their request. The evident reason for this change is clear enough: because their entitlements may subsist for decades, only seriously injured workers are likely to require economic adjustments of the kind formerly recognised in s 39 of the 1986 Act and now by s 47 of the Act.
By contrast, ss 45 and 46 are of potential application to all workers, even where their entitlements are curtailed to a maximum period of two years. Section 45 applies to adjustments to average weekly earnings confined (broadly) to changes in a component of remuneration or to the equipment or facilities provided, whereas s 46 addresses adjustments to weekly payments depending on whether entitlements have “ceased … increased or decreased”.
One example of a “component” of remuneration given by s 45(1)(a) is that of a non‑cash benefit. Another might be overtime. Superannuation is another. Examples under s 45(1)(b) are more difficult to imagine, at least to the extent that they are not already addressed, or capable of being addressed, by s 45(1)(a). Many, perhaps most, changes in equipment or facilities which were used to determine, or which were otherwise relevant to, average weekly earnings might properly be described as a “component” of remuneration. However, it would appear that in enacting s 45(1)(b), Parliament was concerned about the prospect that it might be difficult to regard some equipment or facilities as either a component of remuneration or a non-cash benefit which was provided or made available to a worker. For example, whilst an obvious non-cash benefit might be a motor vehicle and petrol provided by an employer,[52] the analysis might at least potentially become more difficult where the vehicle remains in a pool, capable of being used by a number of workers, and then only in strictly prescribed circumstances.
[52] Cleggett v Coca Cola Amatil [1995] SAWCAT 156 (Gilchrist DPJ).
Despite the potential uncertainties, it is clear that the incorporation of these provisions into the Act without significant change from the 1986 Act – apart from by addressing the case of seriously injured workers – suggests very strongly that no difference in approach was intended.
Speaking generally, where provisions in earlier legislation are reproduced in later legislation, the same meaning and effect is generally intended. That assumption must of course yield to any difference in text or context.
However, as the principal difference is the confinement of s 47 to seriously injured workers in circumstances where they alone receive weekly payments beyond two years, and potentially over a period where economic adjustments are likely to become relevant, the explanation for that change seems clear enough: speaking generally, Parliament did not intend to preserve this mechanism for economic adjustment for workers other than seriously injured workers.
It is difficult to imagine that Parliament intended any dramatic alteration to the operation of this suite of provisions given that it retained the same words in the new Act. The changed operation of one provision so as to confine it to seriously injured workers does not suggest that the overall effect of these provisions was altered. Indeed, and as already emphasised in the context of the 1986 Act, there was no point in retaining s 47 if s 45 already covered the same ground. That they do not cover the same ground is apparent from the different dates on which the adjustments may take effect, as well as the retention of specific requirements which must be satisfied under s 47 before an adjustment can be made for changes in rates, for example, under an applicable award.
As for the operation of s 45(1)(a), it confers on the Corporation the right to review the calculation of “average weekly earnings”, whether on its own initiative or at the request of the worker. The review of average weekly earnings necessarily addresses the worker’s “notional weekly earnings”.
The scope of the s 45 review is, as with s 37, circumscribed and not at large. It is a review undertaken for the purpose of making an adjustment to either of the two matters set out in ss 45(1)(a) or (b), and not otherwise. That is, the review is confined to addressing changes in a component of the worker’s remuneration used to determine average weekly earnings or, otherwise, the review is confined to addressing changes in the equipment or facilities provided to the worker, if relevant to average weekly earnings. The first relevant change under s 45(1)(a) therefore requires the identification in the “component” which had been used to determine average weekly earnings. As already indicated, the terms “rates of remuneration” or “remuneration” were not used and these concepts are distinct. They are not, relevantly under this provision, “components” of remuneration. The second relevant change requires the identification of the equipment or facilities provided by the employer, if relevant to average weekly earnings.
Apart from the confinement of s 47 to seriously injured workers, the replication of the 1986 Act provisions in the Act demonstrates that no change in meaning or effect was intended. In particular, the evident difference in meaning and effect between “rates of remuneration” and “component of … remuneration” did not change. The distinct areas for the separate operation of these concepts was not elided.
The first appeal ground
It was argued for the workers that rates of pay and allowances are components of remuneration under s 45(1)(a). For the reasons already given, that argument must be rejected. Whilst it may be accepted that the ordinary meaning of the word “component” is a “part or an ingredient”,[53] and that this language is capable of applying to rates of pay and allowances, the ordinary meaning must yield to the legislative history and context already reviewed under the 1986 Act and the Act.
[53] Mitsubishi Motors Australia Limited v Love (1992) 59 SASR 339, 342 (Cox J, with whom King CJ and Matheson J agreed).
When that is considered, it is clear that the use of the word “component” was not intended to replicate the existing references to “rates of remuneration” in s 47(3). Something different was intended.
In the circumstances, this appeal ground must be upheld on the basis that the increase in rates and allowances implemented after each work injury did not amount to a relevant change in any component of remuneration used to determine average weekly earnings for the purposes of s 45(1)(a) of the Act.
It is unnecessary to go further and address the additional issue whether, in any event, changes which take effect after the date of the relevant work injury can affect a review made under s 45 of the calculation of average weekly earnings and therefore of notional weekly earnings.
The second appeal ground
Again, it is strictly unnecessary to address this appeal ground. It arises only as an aspect of a review conducted under s 45. As s 45 does not apply, there is no scope to consider whether s 5(15)(a) operates as the Full Bench found.
Conclusion
The appeal should be allowed and the answers of the Full Bench set aside. The matter should be remitted for determination in accordance with these reasons.
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