The Workers Rehabilitation and Compensation Corporation v Philip Player and Kenneth Wayne Clarke No. SCGRG 93/1721/22 Judgment No. 4588 Number of Pages 4 Workers' Compensation

[1994] SASC 4588

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(2), BOLLEN(3) AND DUGGAN(1) JJ

CWDS
Workers' compensation - assessment and amount of compensation - weekly earnings - Respondents entitled to weekly payments by reason of total incapacity - "site allowance" not to be included in calculation of average weekly earnings. (Workers Rehabilitation and Compensation Act ss.3,4) - remuneration paid to respondents for period after normal working hours on a permanent work site when they were required to shower by reason of lead contamination not a "site allowance" under the Act - Re Transbridge Proprietary Limited Nepean River Bridge, Menangle Award (1979) AR 383 at 385 and Francese v Corporation of the City of Adelaide (1989) 51 SASR 522 at 526 referred to.

HRNG ADELAIDE, 11 May 1994 #DATE 3:6:1994

Counsel for appellant:     Mr T O'Callaghan

Solicitors for appellant:    Piper Alderman

Counsel for respondent:     Mr J Weatherill

Solicitors for respondent: Duncan and Hannon

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J The two respondents appeal from a decision of the Workers Compensation Appeal Tribunal. They were employed as drivers for a contractor performing carting work at the Broken Hill Associated Smelters, Port Pirie works. Their duties brought them into contact with lead and this rendered it necessary to shower after their work shifts. The respondents worked under an award which entitled them to a paid period of 15 minutes in order to shower. They were injured in the course of their employment and became entitled, by reason of total incapacity, to weekly payments equal to their respective notional weekly earnings. (Workers Rehabilitation and Compensation Act, 1986 s.35.) The Act equates notional weekly earnings with "average weekly earnings" calculated in accordance with s.4 of the Act and certain allowances, including a "site allowance", are to be disregarded in calculating the average weekly earnings. The term "site allowance" is not defined in the Act and the question raised by this appeal is whether the entitlement for payment for the 15 minute shower period is such an allowance.

2. The learned president of the tribunal pointed out that the term "site allowance" is used extensively in industrial awards and industrial agreements. He went on to say:
    "... the term 'site allowance' has been understood and applied
    in industrial tribunals, and I think correctly so, almost
    exclusively in relation to a building or construction site. The
    allowance is paid to compensate for the unusual or extraordinary
    conditions which apply at a particular building or construction
    site, and it operates only during the time, or part thereof, of
    demolition or construction, as the case may be, at a particular
    site. Conditions which are found to exist in the industry
    generally, are covered by industry allowances, and not site
    allowances."

3. It was his Honour's view that the entitlement in this case was not a site allowance but rather a special rate or allowance to compensate for the disabilities under which the work was performed. He pointed out that the respondents were engaged on work at a permanent smelting establishment.

4. Counsel for the appellant argued that the learned president's understanding of the term was too narrow. He said the concept was applicable to sites other than building and construction sites and pointed out that in the Mining Miscellaneous (District Allowance; Site Allowance) Case (1979) 46 SAIR Pt.I 583 the Industrial Commission dealt with an award which provided for a site allowance for the Mt. Fitton Talc site. Counsel also drew attention to the discussion of site allowances in Re Transbridge Proprietary Limited Nepean River Bridge, Menangle Award (1979) AR 383 at 385. In that case the Industrial Commission of New South Wales, referred to a number of cases and stated:
    "The approach consistently taken by the Commission in
    those cases was first of all to investigate whether
    disabilities were experienced in the working environment
    on the site over and above those which could be regarded
    as normal and for which a general award allowance had
    already been prescribed and, secondly, if such
    conditions were found to exist, then to award an
    appropriate site allowance having regard to the
    particular circumstances."

5. Counsel for the appellant relied on this statement and argued that the unusual features of the site in the present case gave rise to an entitlement which was properly described as a site allowance.

6. I agree with the contention of Mr Weatherill, for the respondents, that in order to arrive at a proper interpretation of "site allowance" as that term is used in the Act it is necessary to have regard to the nature and purpose of "average weekly earnings" in the calculation of a worker's entitlement to income maintenance. In Francese v Corporation of the City of Adelaide (1989) 51 SASR 522 at 526 it was held that:
    "The objective of the provisions appears to be to
    provide to the worker during disability amounts by way
    of compensation equivalent to the earnings which he
    could have counted upon receiving if there had been no
    disability." (p.526) "Average weekly earnings" are to be
    calculated in accordance with s.4 of the Act. S.4(1)
    provides that they are "the average amount that the
    worker could reasonably be expected to have earned for a
    week's work if the worker had not been disabled". The
    section goes on to provide what factors are to be taken
    into account for determining average weekly earnings and
    what matters are to be disregarded. The emphasis is on
    regular and established components and transitory
    factors are excluded. Accordingly s.4(8)(a) provides:
    "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."

7. In Francese's case King CJ said of the overtime provisions:
    "If overtime is worked regularly and is an established
    incident of the employment so as to form in practice
    part of the regular income, a regular and established,
    albeit perhaps an uneven or disjointed, pattern exists.
    On the contrary, if overtime is worked only occasionally
    or spasmodically in response to busy periods or special
    demands so that it does not form part of the regular
    income, it cannot be said to be worked in accordance
    with a regular and established pattern. The amount of
    overtime which is to be included in the computation of
    the amount that the worker could reasonably be expected
    to have earned during the period of disability, is to be
    estimated taking into account the average earned during
    the previous 12 months."

8. The concept of an irregular payment or allowance is also reflected in s.3 of the Act which defines "prescribed allowance" as -
    "... any amount received by the worker from an employer
    - (a) by way of an allowance to cover special expenses
    incurred by the worker in the course of employment;
    (b) by way of special rates paid to the worker on an
    irregular basis to compensate for occasional
    disabilities under which work is performed (not being
    rates that are paid during a period of leave with pay);
    (c) (Repealed);
    (d) by way of site allowance;
    (e) by way of any other allowance or benefit prescribed
    for the purposes of this definition."

9. I accept the learned and experienced president's assertion that in industrial tribunals the term "site allowance" is most often used to refer to an allowance in relation to a building or construction site. It may be that it is sometimes used in connection with another type of location such as a mining site, but it is the temporary nature of building or construction sites which enables them to be readily identified with the intention to exclude factors of a transient nature from the calculation of average weekly earnings. When viewed against this background it would be surprising if the intention of the Act was to exclude an entitlement of the type under discussion from the calculation of average weekly earnings.

10. The entitlement is expressed in the relevant award as follows:
    "An employee whose activities necessitate a shower at
    the completion of ordinary hours shall be allowed
    fifteen minutes to do so, which shall be paid at
    ordinary time. This period shall not be treated as work
    for overtime purposes."

11. Looked at in one way this clause does no more than extend work time beyond ordinary hours so as to permit the showering to take place. The permanency of the location and the ongoing nature of the environmental hazard ensure that the remuneration for the extra period is a regular component of the respondents' earnings. I am of the opinion that the permanency of location takes the case outside the term "site allowance" used in the Act and it follows that the additional remuneration received in accordance with this entitlement may be taken into account in order to determine "average weekly earnings".

12. In my view the appeal should be dismissed.

JUDGE2 MOHR J I agree.

JUDGE3 BOLLEN J I agree.