Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd - [2022] NSWPICPD 47

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPICPD 47
APPELLANT:	Transport Contract Services (NSW) Pty Ltd
FIRST RESPONDENT:	Employers Mutual NSW Ltd
SECOND RESPONDENT:	Peter Buchan
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4987/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	6 December 2022
ORDERS MADE ON APPEAL:	1. The appeal cannot be brought as the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied and there is no right of appeal.
CATCHWORDS:	WORKERS COMPENSATION – the requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 in respect of bringing an appeal: O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, Popovic v Liverpool City Council [2017] NSWWCCPD 49, the definition of ‘pre-injury average weekly earnings’ in clause 2(1) of Schedule 3 to the 1998 Act, the definition of ‘earnings’ in clause 6 of Schedule 3 to the 1998 Act; statutory interpretation: the term ‘gross’ in the definition in Sch 3, cl 2(1), application of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; the ‘objects’ in s 3 of the 1998 Act; SAS Trustee Corporation v Miles [2018] HCA 55; 361 ALR 206
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Guest, solicitor
Sparke Helmore Lawyers
First Respondent:
Ms B Tronson and Ms C Roberts, counsel
Hicksons Lawyers
Second Respondent:
Unrepresented

DECISION UNDER APPEAL
PRINCIPAL MEMBER:	Mr J Harris
DATE OF Member’s DECISION:	25 February 2022

INTRODUCTION AND BACKGROUND

Peter Buchan (the worker) was engaged by Transport Contract Services (NSW) Pty Ltd (the employer) pursuant to an owner/driver agreement as a “freight courier and deliverer”. The worker was required to provide, maintain and fuel his own vehicle, and to maintain various insurance policies in respect of it. The worker suffered a compensable injury to his right ankle on 13 January 2021.
It was accepted that the worker was entitled to be compensated on the basis that he was a deemed worker for the purposes of the workers compensation legislation. Liability was accepted by Employers Mutual NSW Pty Ltd (EML/the insurer). EML was a scheme agent of the Nominal Insurer appointed pursuant to Pt 7 of the Workers Compensation Act 1987 (the 1987 Act). The weekly entitlement was compensated by reference to the worker’s ‘pre-injury average weekly earnings’ (PIAWE), which EML calculated at $720.28.[1] As at the date of the hearing at first instance weekly payments continued to be made on that basis.[2]
[1] Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPIC 81 (the reasons), [1]–[5], [17]–[19].
[2] Reasons, [5].
The employer accepts that the figure of $720.28 (the PIAWE on which the payments were based) accurately describes the rate at which payments were made to the worker during the period relevant to the calculation. The employer asserts that the PIAWE figure should be reduced by 25% to a figure no greater than $540.21, to reflect the fact that a proportion of the payments was to cover expenses.[3] The employer’s submissions to that effect are set out in the Miscellaneous Application instituting the current proceedings.[4]
[3] Miscellaneous Application, p 2.
[4] Miscellaneous Application, Annexure ‘A’, [17]–[22].
The proceedings were listed for hearing before Principal Member Harris on 14 February 2022. Mr Stanton appeared for the employer and Ms Roberts appeared for EML. The worker had been joined as a respondent to the proceedings but did not appear. The Principal Member considered the position of the worker and rejected a submission by EML that the worker had not been afforded procedural fairness in the circumstances.[5] Both counsel addressed.
[5] Reasons, [12]–[16].
The Commission issued a Certificate of Determination dated 25 February 2022. There was a finding that the employer was “entitled to litigate the dispute with [EML] about the amount of the worker’s PIAWE”.[6] There was a finding that “[EML] has correctly assessed the worker’s PIAWE based on the provisions of the agreement [between the worker and the employer]”.[7] The Commission determined that the proceedings be dismissed.
[6] Reasons, [77].
[7] Reasons, [105].

THE PRINCIPAL MEMBER’S REASONS

The Principal Member said the employer asserted that the dispute was “justiciable in the Personal Injury Commission” on the basis of s 287(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)[8] which relevantly provides:
“(1) This Part applies to a dispute in connection with a claim for compensation between—
(a) the person who makes the claim and a person on whom the claim is made, or
(b) the employer on whom the claim is made and the insurer on whom the claim is made.”
[8] Reasons, [6].
The Principal Member referred to the attempts that had been made to contact the worker and to inform him of the availability of legal assistance. The Principal Member rejected EML’s submission that the worker was not afforded procedural fairness.[9] The Principal Member summarised the contractual arrangements between the worker and the employer[10] and correspondence going to the disputed calculation of PIAWE.[11]
[9] Reasons, [12]–[16].
[10] Reasons, [17]–[20].
[11] Reasons, [21]–[24].
The Principal Member summarised the submissions of the employer and EML relating to whether the employer’s application could be brought within the framework of the workers compensation legislation.[12] After referring to authority, the Principal Member said that the words of s 287(1) of the 1998 Act “are clear”. He said the dispute between the employer and EML “arises from the correspondence exchanged between the employer and the insurer” and related to “the correct PIAWE”. He accepted that this was “in connection with a claim for compensation”. He rejected EML’s submission that the dispute “must be between the worker and the insurer”. Section 287(1)(b) required a dispute between the employer and the insurer. The Principal Member said that the subclause would apply “even if the insurer had met the claim”. The Principal Member said that s 288 of the 1998 Act provided that “any party to a dispute about a claim” may refer it to the Commission.[13]
[12] Reasons, [28]–[39].
[13] Reasons, [40]–[51].
The Principal Member referred to the Commission’s “exclusive jurisdiction” conferred by s 105 of the 1998 Act. He accepted “that the right of an employer to contest an insurer’s decision has a proper basis within the statutory scheme”. The Principal Member referred to Sch 3 to the Workers Compensation Regulation 2016 (the Regulations), in which the statutory policy of insurance is to be found. Clause 24 of the policy describes it as “subject to the provisions of the Act”. The Principal Member said he rejected a submission by EML “that subsequent delegated legislation can be used to ‘guide the interpretation’ of the legislation”. He said that EML’s submission that “the mandatory policy [of insurance] somehow restricts the clear words of the Act when it is expressed to be subject to it, is thereby contrary to settled authority that it is rare that delegated legislation will assist in the interpretation of the legislation”.[14]
[14] Reasons, [53]–[61].
The Principal Member referred to submissions made on EML’s part which he rejected,[15] concluding:
“The difficulty with the insurer’s submission is that it appeared to accept that the employer has a right to raise disputes between it and the insurer where they are expressly provided, such as in ss 22 and 22B of the [1987] Act. In these circumstances it is unclear how the insurer suggests that the general words of s 287(1)(b) be limited.
The insurer did not suggest that it was reading words into the statutory provision although it was seeking to limit what reads as a general entitlement.”[16]
[15] Reasons, [62]–[66].
[16] Reasons, [67]–[68].
The Principal Member said:
“I do not accept there is a proper basis to reads words into the section to limit the operation of the provision to the circumstances articulated by the insurer, such that the general right to raise a dispute is limited to the specific situations specified elsewhere in the [1987] Act and/or [1998] Act. It would be incorrect to read s 287(1)(b) down and restricted to those situations where the [1987] Act expressly provided a right by an employer to contest an insurer’s decision.”[17]
[17] Reasons, [71].
He concluded on this topic, saying “the employer is entitled to litigate the dispute with the insurer about the amount of the worker’s PIAWE”.[18] The Principal Member summarised the submissions of the employer[19] and EML[20] dealing with the calculation of PIAWE.
[18] Reasons, [77].
[19] Reasons, [78]–[84].
[20] Reasons, [85]–[88].
The Principal Member referred to the definition of ‘wages’ in s 174(9)(b) of the 1987 Act. He said the parties accepted that the definition was not relevant to quantification of PIAWE. He said the “authorities referenced by the employer on the issue of the value of the worker’s business post-injury capacity have little, if any relevance to the calculation of PIAWE under Schedule 3”. The Principal Member said he accepted there was “a recognised principle against double compensation” but did “not accept that this principle has any relevance to the construction of PIAWE in Schedule 3”.[21] The Principal Member said:
“The agreement between the worker and the employer specifies that the employer is to pay the worker various rates as provided in the Schedule … The agreement between the employer and the worker specified the rates which were dependent upon work performed and were properly classified as earnings within the meaning of Schedule 3. No portion of the rates payable by the employer under the agreement are properly characterised as an expense.
The parties agreed that the PIAWE was assessed on the income paid by the employer to the worker under the agreement for the 12 months prior to injury. The gross amount of income (used in a neutral term) before expenses was also agreed. Whilst the worker obviously has a right to claim a deduction because various costs are properly incurred expenses, I agree with the insurer’s submission that the rates provided in the agreement are earnings as defined in clauses 2 and 6 of Schedule 3 of the [1987] Act. For this reason, I conclude that the insurer has correctly assessed the worker’s PIAWE based on the provisions of the agreement.”[22]
[21] Reasons, [92], [98]–[99].
[22] Reasons, [104]–[105].
The Principal Member concluded it was unnecessary to determine the worker’s expenses. He said:
“In its oral submissions the employer only sought a finding as to the correct PIAWE. It conceded that no recovery had been sought from the worker and one was probably unavailable in the Commission.”[23]
[23] Reasons, [107].
The Principal Member said that “[g]iven the findings on PIAWE, it is unnecessary to consider the appropriate relief as the proceedings must be dismissed”.[24]
[24] Reasons, [109].

THE WORKER’S ROLE IN THE PROCEEDINGS

The worker has taken no active part in the proceedings, either at first instance or on this appeal. A statement from Ms Vial, a paralegal who worked under the supervision of Mr Guest (the employer’s solicitor) dated 3 November 2021, was lodged in the proceedings. It read:
“1.     My name is Kathy Vial and I am employed as a Paralegal under the supervision of Greg Guest.
2.      On 2 November 2021 I sent an email to Peter Buchan chasing production of financial records in response to a Notice for Production served upon him. Annexed hereto and marked with the letter “A” is a copy of this letter.
3.      On 2 November 2021 I received a phone call from Mr Buchan as follows:
“I am producing jack shit. Don’t send me anything, I am not interested. This has nothing to do with me, it is between my employer and the insurer”
and hung up.
4.      I declare that the contents of this statement are true to the best of my knowledge and belief.”
A copy of a letter dated 2 November 2021 (forwarded by mail and email) from the employer’s solicitors to the worker was attached to Ms Vial’s statement and was consistent with the description in her statement. There was also a recorded message from the worker to “Kathy” (I infer Ms Vial) that said:
“Kathy, my name is Peter Buchan, in regards to Transport Contract Services (NSW) Pty Limited v Employees Mercantile [sic] NSW Limited and whatever.
Not interested. So please stop sending me crap as it’s got nothing to do with me. Well it has got something to do with me indirectly but not directly. I will not be responding to any further emails you send.
The Commission forwarded a letter to the worker dated 8 March 2022 informing him that an appeal had been lodged. The letter attached the appeal document (which included the Member’s decision) and the timetable for the appeal, set out in the President’s Direction. The letter informed the worker of various options, including how to obtain legal assistance. The file indicates that under cover of a separate email the Commission forwarded the transcript of the hearing before Principal Member Harris to the parties, including the worker. The file indicates that no response was received by the Commission from the worker to these items of correspondence.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
It does not appear that the worker seeks to take any active role in these proceedings. Having regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the employer and EML that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the 1998 Act have been met. There is an issue regarding whether s 352(3) of the 1998 Act is satisfied. Section 352(3) provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”

Employer’s submissions

The employer submits:
“The [employer] submits that the amount of compensation at issue in this appeal exceeds $5,000.00 as it involves a finding as to PIAWE that impacts the weekly benefits payable to the [worker] from 13 January 2021 to date and continuing. This amount is in excess of $150.00 per week and for greater than a 60 week period. The [worker] remains in receipt of weekly benefits and the determination involves rights to future weekly compensation benefits as well.”[25]
[25] Appellant’s submissions, [9].

EML’s submissions

EML raises two arguments. The first is that the monetary threshold is not reached as “the amount truly in issue between [EML] and the employer is not the amount of compensation payable by [EML] to the worker, but any impact on premiums payable by the employer to [EML]”.[26]
[26] Respondent’s submissions, [6].
The second argument is that it was always the employer’s case that, if it succeeded, it would not seek to recover payments already made. EML refers to the reasons at [107] and to the transcript where EML’s counsel said:
“Well what I was going to submit, Member, is that as you’ve observed several times the [employer] hasn’t sought any order in relation to any type of reimbursement type thing ...”[27]
[27] Transcript of hearing on 14/2/22 (T), T 24.17–20.
EML submits “payments already made are not in issue, whether at all or for the purposes of s 352(3)”. EML submits the worker played no active role in the proceedings at first instance, and it is unknown what attitude the worker takes to the appeal. EML submits the appeal documents would not make clear, to a non-lawyer, that the employer might now be seeking to agitate a point, reimbursement, not run at first instance.[28]
[28] Respondent’s submissions, [7]–[8].
EML submits nothing is particularised by way of prospective payments and hypothetical events do not provide a basis for determining that a threshold has been met.[29] It submits that future compensation not yet claimed is not generally relevant. It refers to O’Callaghan v Energy World Corporation Ltd,[30] Abu-Ali v Martin-Brower Australia Pty Ltd[31] and Anderson v Secretary, Department of Education.[32] It submits the threshold is not met.
[29] Reference is made to ACS v Secretary, Department of Communities and Justice [2022] NSWPICPD 2, [58]; AAI Ltd t/ as AAMI v Chan [2021] NSWCA 19, [59]–[61]; Sleiman v Gadalla Pry Ltd [2021] NSWCA 236, [28].
[30] [2016] NSWWCCPD 1 (O’Callaghan), [50]–[52].
[31] [2017] NSWWCCPD 25 (Abu-Ali), [23].
[32] [2018] NSWWCCPD 32, [84].

Employer’s submissions in reply

The employer submits it seeks a determination of PIAWE from 13 January 2021, the date of injury, which would affect compensation payable from that date. The appeal does not simply relate to the premiums that are payable. The amount at issue exceeds $5,000.[33]
[33] Appellant’s submissions in reply, [3]–[6].
The employer refers to EML’s submission regarding whether reimbursement is sought. It submits that decision is one for the insurer, not the employer. It submits that if the employer’s arguments were accepted the insurer would be at liberty to seek reimbursement under subcll (4) and (10) of s 58 of the 1987 Act. It submits the insurer could seek reimbursement of payments made pursuant to its powers of subrogation under cl 12 of Sch 3 to the Regulations. It refers also to “general common law principles such as unjust enrichment”. It submits recovery is an “irrelevant consideration” in dealing with satisfaction of the monetary threshold.[34]
[34] Appellant’s submissions in reply, [7]–[11].
The employer submits the cases referred to by the respondent, such as O’Callaghan, can be distinguished. It refers to Lilly v Tomago Aluminium Company Pty Ltd[35] in support of the proposition that compensation not yet paid (in that case the cost of surgery) was relevant to the issue of threshold.[36]
[35] [2004] NSWWCCPD 62.
[36] Appellant’s submissions in reply, [12]–[13].

Consideration

The employer in its Miscellaneous Application sought an order that “weekly benefits be paid on the basis of a PIAWE of no more than some $540 a week”. The order sought was expressed to date from 13 January 2021 (the date of injury). The employer stated it had not sought an order for reimbursement.[37] The employer had “been indemnified in relation to the compensation payments due” to the worker.[38] The employer’s counsel submitted “[i]t has an interest in all this because what’s paid, of course, affects the cost of claims and that is factored into the premium calculations eventually”.[39] He submitted:
“What we’re dealing with here is a dispute ultimately about the premiums which are payable by an employer with respect to the contract of insurance between the employer and the nominal insurer whose interests, of course, are looked after by iCare.”[40]
[37] T 2.8–24.
[38] T 5.31–32.
[39] T 6.1–3.
[40] T 7.10–15.

There was discussion, at the hearing before the Principal Member, going to the availability of orders for repayment if the employer’s argument regarding PIAWE were accepted.[41] During the course of the discussion the following was said:
“MR STANTON: Yes. Member, I think you’re right in that the ability of the Commission to make orders requiring reimbursement are very limited and I haven’t exhaustively researched this but I think they’re limited to circumstances involving return to employment and relevant earnings.
PRINCIPAL MEMBER: I think it’s an example where the Commission doesn’t have power. It’s a common law debt, for example, if there was a payment - - -
MR STANTON: Yes.
PRINCIPAL MEMBER: - - - ..(not transcribable 00:39:09)..
MR STANTON: I mean, an employer could try to claim it under – as a common money count for money paid under a mistake of fact might be available and interestingly - - -
PRINCIPAL MEMBER: But not in the Commission. It’s an example where - - -
MR STANTON: But not in the Commission, that’s right.”[42]
[41] T 19.24–22.22.
[42] T 21.33–21.22.
The above reference to “return to employment and relevant earnings” appears to be a reference to s 58 of the 1987 Act. The proceedings were conducted, and I mean no criticism, on the basis that, if the employer succeeded, reimbursement of any overpayments was not being pursued in the Commission. This is consistent with the Principal Member’s remarks quoted at [14] to [15] above.
The Principal Member accepted EML’s argument that the insurer’s calculation of PIAWE did not involve error and he dismissed the proceedings. No monetary award was made at first instance. In Grimson v Integral Energy Fleming DP said “The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance”[43] (emphasis in original). In NSW Department of Education and Communities v Colefax Keating P dealt with an appeal in a matter involving a workplace injury management dispute. His Honour, after referring to Grimson, said “in this case there was no amount of compensation claimed in the Application, hence there is no amount of compensation ‘at issue’ on the appeal and the thresholds in s 352 of the 1998 Act have not been met”. His Honour described this reasoning as being “consistently applied in the Commission”.[44]
[43] [2003] NSWWCCPD 29 (Grimson), [19].
[44] [2012] NSWWCCPD 63, [23]–[24].
In Popovic v Liverpool City Council[45] a sum of $5,000 was claimed in the worker’s Application, in respect of medical expenses. The appellant worker sought to rely on this pleading to establish that the threshold in s 352(3)(a) was satisfied. In rejecting this argument Keating P said:
“Mrs Popovic submits that the threshold issue should be decided in her favour because of the way in which the case was pleaded. Namely, that an amount of $5,000 was pleaded in the Application as the amount sought in compensation. I do not accept that submission. It is apparent that Mrs Popovicabandoned that claim on the first day of the hearing. The matter proceeded before the Arbitrator on the basis that only a general order was sought in respect of medical and hospital expenses. There was no particularisation of the extent of the medical expenses sought to be recovered”.[46]
And:
“It follows that the reference to a claim for ‘$5,000’ pleaded in the Application is not decisive of whether the monetary threshold has been satisfied. What is decisive is the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum.”[47]
[45] [2017] NSWWCCPD 49 (Popovic).
[46] Popovic, [25].
[47] Popovic, [28].
In O’Callaghan Roche AP dealt with an appeal by a worker who sought to set aside earlier consent orders so as to pursue a medical appeal. The Acting President said:
“The Commission is concerned with the current claim and whether, in respect of that claim, the amount of ‘compensation at issue on the appeal’ is at least $5,000. That claim is not one for compensation but one that relates to the threshold for a potential work injury damages claim. As a result the monetary threshold cannot be met.”[48]
[48] O’Callaghan, [50].
In the current matter there is a part of the Miscellaneous Application which calls for insertion of “the claim and/or the orders being sought”. This was completed on the employer’s part as follows:
“Orders: That the applicant employer pays the respondent worker weekly compensation from 13 January 2021 at a rate of $513.20 per week as adjusted by the Act based on a PIAWE of no more than $540.21 per week.”
This pleading, of the orders sought, related to weekly compensation for a period which had already been compensated and in respect of which the worker was not asserted to have any outstanding entitlement. The term ‘compensation’ is defined in s 4 of the 1998 Act:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
The employer’s submissions proceed on the basis that, if ultimately there were moneys that it could theoretically recover, on the basis there had been an overpayment resulting from acceptance of its PIAWE argument, this would constitute an ‘amount of compensation at issue on the appeal’ for the purposes of s 352(3)(a). I do not accept that submission. Under cl 11 of the statutory policy[49] the insurer was entitled to use the name of the employer “in respect of anything indemnified under this policy”. Clause 12 of the policy provided the insurer had “the right of subrogation in respect of all rights which the Employer may have against any person or persons who may be responsible to the Employer or otherwise in respect of any claim in respect of any injury covered by this policy”. The insurer noted at the hearing before the Principal Member that it continued to make payments and was “happy to keep paying”.[50] It was noted at that hearing that the worker underwent back surgery in January 2022 and was, at that time, “totally incapacitated”.[51] The employer’s submissions on this appeal state that the worker “remains in receipt of weekly benefits”.[52] The insurer, in accordance with the statutory policy, was paying compensation to the worker. The worker did not assert he had unsatisfied rights to compensation against the employer or the insurer.
[49] The Regulations, Sch 3.
[50] T 12.1–3.
[51] T 23.27–24.6.
[52] Appellant’s submissions, [3].
The employer correctly submitted that any pursuit of reimbursement was a matter for the insurer (see [28] above). The worker’s entitlement to compensation from the employer, including any relevant monetary benefit, had already been paid (and continued to be paid) voluntarily by the insurer, consistent with the insurer’s rights and obligations under the policy. The insurer made no application, in the current proceedings, for repayment of any overpayment that may arise if the employer succeeded in its argument based on PIAWE. The employer did not pursue such an argument at the hearing before the Principal Member.
The decision in O’Callaghan (see [35] above) made it clear that the monetary threshold in s 352(3) needed to be satisfied in respect of the “current claim”, the claim the subject of the appeal. I followed O’Callaghan in Abu-Ali.[53] The decision of Keating P in Popovic dealt with the threshold in s 352(3)(a) on the basis that regard should be had to the basis on which the relevant claim was ultimately presented and pursued, which may differ from how it was pleaded (see [34] above). I agree with that decision. It would be nonsensical if the threshold in s 352(3)(a) could be satisfied simply on the basis of a pleading that was not pursued or genuinely in dispute between the parties.
[53] Abu-Ali, [22].
In the circumstances of the current case the threshold in s 352(3) of the 1998 Act is not satisfied and the appeal cannot be brought.
It is appropriate that I deal with the ground of appeal raised by the employer, in the event that I am wrong in the view I have formed regarding satisfaction of the threshold in s 352(3) of the 1998 Act.

GROUND OF APPEAL

The appellant raises a single ground of appeal:
“The Principal Member erred in the calculation of pre-injury average weekly earnings (PIAWE) in relation to 2nd Respondent by relying on gross payments received by a deemed worker pursuant to the contract and not making an allowance for, or deduction of expenses incurred by the 2nd Respondent in his fulfilment of the contract as an owner/driver.”

APPELLANT’S SUBMISSIONS

The employer notes the definition of PIAWE in Sch 3 to the 1987 Act (Sch 3) and the meaning of ‘earnings’ set out in cl 6 of Sch 3. It states that it repeats and relies on submissions in a letter dated 30 March 2021 that is attached to the Application.[54] (The letter raises similar arguments to those otherwise pursued in the current proceedings.) The employer notes the common ground that payments made to the worker pursuant to the contract during the relevant 12-month period averaged $720.28 per week. It submits the Principal Member erred in failing to consider the worker’s expenses in fulfilling the contract. The worker was a self-employed courier driver, deemed to be a worker pursuant to Sch 1 cl 2 of the 1998 Act. The Principal Member found payments to the worker pursuant to the contract were ‘earnings’ within the meaning of Sch 3 and no proportion was properly classified as “expenses”. The gross payments represented the PIAWE.[55]
[54] Miscellaneous Application, pp 84–86, appellant’s submissions, [15]–[17].
[55] Appellant’s submissions, [18]–[22].
The employer submits the contract between it and the worker provided for him to meet various specified expenses including those associated with his vehicle. These expenses varied depending on the engagements undertaken. Records indicated the worker travelled over 30,000 kilometres in the relevant 12-month period. Common experience suggests the costs would have been significant. The employer submits it prepared a schedule of the kilometres travelled to fulfill the contract, which was tendered without objection. It submits that icare published material, based on its own enquiries, stating that 25% of payments to similar contractors related to expenses. It submits average expenses would have been at least $100 per week. It submits it was erroneous to find that the gross payments represented the PIAWE figure for a self-employed contractor. Fuel costs were an obvious example of an expense in running the contractor’s vehicle.[56]
[56] Appellant’s submissions, [19]–[29].
The employer refers to the definition of ‘earnings’ in cl 6 of Sch 3 to the 1987 Act:
“(1) The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.”
The employer submits the phrase “work performed” in the passage quoted immediately above, in the case of a “self-employed contractor”, refers to the “labour component of the engagement”. It refers to “the principal against overcompensation”. It refers to s 174(9) of the 1987 Act, which at subcl (b) provides:
“includes payment (whether by way of commission, fee, reward or otherwise) under a contract (whether referred to as a contract, agreement, arrangement or engagement) by reason of which the person paid is deemed by Schedule 1 to the 1998 Act to be a worker, after deducting such amount for costs necessarily incurred by that person in performing that contract as may be agreed on or, in default of agreement, as may be determined by the Authority …”.
The employer refers to a “long line of authority that confirms regard must be had to expenses when calculating the earnings of self-employed contractors”, specifically citing Lower North Shore Community Transport Inc v Grass.[57] It submits that, in this decision, it was found that an arbitrator of the former Workers Compensation Commission of New South Wales erred in assessing a contractor’s earnings by reference to gross income and failing to consider expenses. It refers to the frequently cited passage from Project Blue Sky Inc v Australian Broadcasting Authority[58] at [69] to [70]. It refers to J & H Timbers Pty Ltd v Nelson,[59] a case involving a contractors deemed to be a worker, in which it was said:
“The Act is concerned with compensation for the total or partial incapacity of a worker - that is, the destruction or diminution of his earning capacity measured by his earnings ‘as a worker’.”[60] (appellant’s emphasis)
[57] [2007] NSWWCCPD 106 (Grass). Appellant’s submissions, [30]–[32].
[58] [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
[59] [1972] HCA 12; 126 CLR 625 (Nelson).
[60] Nelson, 643 (per Windeyer J).
The employer submits “the purposes of the current Act have not changed and the expression used in the current provisions ‘work performed in any employment’ must have work to do in accordance with principles of statutory interpretation”.[61] The employer submits this is consistent with the language and purpose of the statute. It avoids a self-employed contractor being paid workers compensation at a rate that exceeds his pre-injury earnings. The employer submits there is a public interest ensuring that workers are paid their proper entitlements but no more. It refers to Wrightville Services Pty Ltd v Return to Work Corporation of South Australia (Franck).[62]
[61] Appellant’s submissions, [30-2]. (The appellant’s paragraph numbering in its submissions uses the numbers [29] to [33] twice. Where a paragraph number is being used by the appellant for the second time this is indicated by the addition of “-2”.
[62] [2020] SAET 93.
The employer refers to a decision of Eftimovski vToll Global Express Courier,[63] which it states supports a submission that gross payments to a deemed worker should be adopted in determining PIAWE. The employer submits this decision “can be distinguished, is not binding and the determination is erroneous”. The employer makes submissions seeking to identify what is the alleged factual error in this decision.[64] I note this decision by a member was the subject of a Presidential appeal[65] in which the Member’s decision was confirmed. The Presidential appeal dealt largely with the approach taken at first instance to the division of partnership income between the worker and his spouse.
[63] [2021] NSWPIC 288 (Eftimovski No. 1).
[64] Insurer’s submissions, [31-2]–[33-2].
[65] Toll Transport Pty Ltd v Eftimovski [2022] NSWPICPD 14 (Eftimovski No. 2).

INSURER’S SUBMISSIONS

The insurer refers to the definition of ‘pre-injury average weekly earnings’ in cl 2(1) of Sch 3 to the 1987 Act:
“Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.”
The insurer submits that there is no statutory basis for a deduction, “in essence ‘gross’ should not be read down to mean ‘net’.” The insurer refers to Eftimovski No. 1 in support of this proposition. The insurer submits there was no evidence before the Principal Member (or on this appeal) about any actual expenses paid by the worker. The reasons noted the Principal Member’s acceptance of a submission from the insurer that some expenses paid by the worker might still need to be met even when he is not working.[66] The insurer refers to the icare NSW Wages Definition Manual, referred to in the employer’s submissions (see [45] above).[67] The insurer submits that the Manual relevantly “provided for standard default percentages that may be applied to amounts paid to contractors for the purpose of calculating premiums” (emphasis in original). These figures are able to be used if “the employer and icare are unable to come to a reasonable assessment (through examining invoices, receipts or other documentary evidence) of the amount the contractor will be required to spend (or has spent) (page 25).” The insurer submits this “does not assist in determining the legal issue in this case.”[68]
[66] Reasons, [88].
[67] See reasons, [22]–[23].
[68] Insurer’s submissions, [19]–[22].
The insurer deals with some decisions referred to by the employer. Grass involved a dispute about evidence “in circumstances in which there was ‘no doubt that the statements made by the worker in his claim for compensation and subsequently were factually incorrect’, and other documents were ‘unreliable’.” The insurer refers to Nelson, submitting it involved “a discretionary assessment of what a worker would probably have earned but for an injury”. It describes this as “a different, less clear, statutory test”. It contrasts the tests by reference to the judgment of Gibbs J in Nelson, where his Honour “expressly disclaimed the proposition that ‘earnings’ for the provision in question in Nelson meant ‘gross amount ... received’.” The insurer contrasts this with cll 2 and 6 of Sch 3 to the 1987 Act, which the Principal Member described as making it “pellucid that the ‘gross amount … received’ is the relevant amount”. The insurer refers to the Principal Member’s reasons at [97], where he cited Wollongong Nursing Home Pty Ltd v Dewar[69] in support of the proposition that “care must be exercised when assessing the extent of incapacity in light of the 2012 amendments”.[70]
[69] [2014] NSWWCCPD 55, [54].
[70] Insurer’s submissions, [23]–[25].
The insurer submits the difference between the PIAWE provisions now at issue, and the provisions considered in Grass and Nelson, is important. The PIAWE provisions demonstrate “a particular legislative choice to focus on simplicity and the greater certainty that comes with it”. The insurer submits the construction for which the employer contends “would put a gloss on the clear words of the provisions presently in issue”. It submits the appeal should be dismissed.[71]
[71] Insurer’s submissions, [26]–[27]

APPELLANT’S SUBMISSIONS IN REPLY

The appellant refers to a summary (found in Hesami v Hong Australia Corporation Pty Ltd[72]) of the summation by Allsop P (as his Honour then was) in Wilson v State Rail Authority of New South Wales[73] of a number of the principles governing statutory construction. His Honour (Giles, Hodgson, Tobias and Macfarlan JJA agreeing) said:
“It is the language of Parliament that must be interpreted and construed. However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect.”[74] (excluding references)
[72] [2011] NSWWCCPD 14, [43].
[73] [2010] NSWCA 198; 78 NSWLR 704 (Wilson).
[74] Wilson, [12].
The employer submits the legislation should be considered as a whole, including its legislative purpose, and all words in the statute should be given work to do. The employer refers to two of the objectives, to promote the return to work and to be fair, affordable and financially viable.[75] It submits that making payments in respect of the expenses of an independent contractor does not reflect this. It reiterates its argument that payments should only be in respect of the labour component of the contract. The alternative interpretation could potentially place a “worker in a better financial position than if uninjured”. It submits this would be inconsistent with the objectives referred to from s 3 to the 1998 Act.[76]
[75] Section 3 of the 1998 Act.
[76] Appellant’s submissions in reply, [17]–[20].

The employer gives an example, being contractors utilising a prime mover. It refers to the icare NSW Wages Definition Manual, saying that the labour component for such contractors is only 30 per cent. It submits PIAWE calculated by reference to gross payments would “reflect a very substantial overpayment of benefits to such contractors”. It submits that such a contractor would have little incentive to return to work. It submits compensation payments to such a contractor “could be more than double their actual earnings whilst engaged under the contract”. This is submitted to be perverse and inconsistent with the Act as a whole. The employer repeats its submission that payments to independent contractors should be based on “the labour component of earnings (gross payments less expenses) and not gross payments received”.[77]
[77] Appellant’s submissions in reply, [21]–[24].

LEGISLATION

Schedule 1 cl 2(1) of the 1998 Act provides:
“2 Other contractors
(cf former Sch 1 cl 2)
(1) Where a contract—
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) (Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
Schedule 3 to the 1987 Act deals with ‘Earnings for purposes of weekly payments of compensation under Division 2 of Part 3’. Division 2 of Part 3 deals with ‘Weekly compensation by way of income support’. It includes Subdivision 2 which contains ss 33 to 42 of the 1987 Act (which set out entitlements to weekly compensation).
Schedule 3 cl 2 provides:
“2 Meaning of ‘pre-injury average weekly earnings’
(1) Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.”
Schedule 3 cl 6 provides:
“6      Meaning of ‘earnings’
(1)     The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
(2)     The income of a worker does not include—
(a) any minimum amount paid to a superannuation fund or scheme in respect of the week to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, for the worker, or
(b) the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or
(c) any payment in respect of loss of earnings under a scheme to which the workers compensation legislation relates or under any other insurance or compensation scheme, or
(d) any payment made without obligation by the employer.
(3)     However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.
(4)     The Workers Compensation Guidelines may make provision for or with respect to the matters to be taken into account for the purposes of determining whether a benefit has been provided to a worker or whether the worker is entitled to the use of a benefit.”
Section 3 of the 1998 Act provides:
“3      System objectives
The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives—
(a)     to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b)     to provide—
• prompt treatment of injuries, and
• effective and proactive management of injuries, and
• necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c)     to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d)     to be fair, affordable, and financially viable,
(e)     to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f)      to deliver the above objectives efficiently and effectively.”

CONSIDERATION

No party takes issue with the Principal Member’s conclusion that the Commission had jurisdiction to deal with the current dispute.
The “Owner-Driver Agreement dated 12 December 2019” between the employer and the worker is before the Commission.[78] The worker was obliged under the agreement to provide and maintain a suitable vehicle. He was obliged to pay expenses including petrol, oil, repairs, insurances and running costs. The employer submitted before the Principal Member that some costs probably continued to be paid by the worker, such as insurance and other possible overheads that are not known or generally within the Commission’s knowledge.[79] The Principal Member observed that there could not be “overcompensation” in respect of overheads such as insurance that were fixed.[80] In any event, the worker must have incurred expenses in carrying out his obligations under the contract, although these are not accurately proved. In the running of the case it was suggested the expenses would have been “at least a hundred dollars a week, probably more”.[81] The Principal Member noted the insurer did not contest the accuracy of a schedule prepared by the employer’s solicitor that calculated the number of days worked and kilometres driven by the worker during the 12 months prior to injury.[82]
[78] Reply, pp 4–15.
[79] Reasons, [88].
[80] Reasons, [100].
[81] T 36.14–18, 41.30–42.3.
[82] Reasons, [26]–[27].
The employer sought to adopt an approach that, of the sums paid to the worker during the relevant 12 months pre-injury, 75 per cent represented the labour component and the remaining 25 per cent represented expenses. The employer based this on the icare NSW Wages Definition Manual. The insurer noted, and this was not challenged, that this Manual was to be used for the calculation of premiums, it was not for use in the calculation of PIAWE. [83]
[83] Reasons, [22]–[23].
The Principal Member referred to a number of authorities that dealt with statutory construction. Dealing with the issue of whether the Commission had jurisdiction to deal with the current dispute, he quoted the following well known passage from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[84] (footnotes omitted)
[84] [2009] HCA 41; 239 CLR 27 (Alcan), [47].
The Principal Member also quoted the following passage from the plurality in SZTAL v Minister for Immigration and Border Protection:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”[85] (footnotes omitted)
[85] [2017] HCA 34; 262 CLR 362, [14].
The passage from Wilson quoted by the employer in its submissions in reply (see [55] above) is generally consistent with the above passages quoted in the Principal Member’s reasons.
The Principal Member referred to the agreement between the worker and the employer:
“The agreement between the worker and the employer specifies that the employer is to pay the worker various rates as provided in the Schedule. These rates are dependent upon the size of the delivery, the travel distance for the delivery and other matters such as the number of ‘drops’ and ‘detention’. Higher rates are payable if the delivery is classified as ‘priority’ or ‘premium’ or is delivered outside normal business hours. The agreement between the employer and the worker specified the rates which were dependent upon work performed and were properly classified as earnings within the meaning of Schedule 3. No portion of the rates payable by the employer under the agreement are properly characterised as an expense.”[86]
[86] Reasons, [104].
It is necessary to have regard to the wording of cl 2 of Sch 3 to the 1987 Act. The sums paid were “received by the worker for work in any employment in which the worker was engaged at the time of the injury” (emphasis added). The sums paid were in respect of specific services supplied by the worker, in his work, to the employer. The sums did not relate to expenses incurred by the worker; provision was not made for this in the contract. The Principal Member concluded that “the rates provided in the agreement are earnings as defined in clauses 2 and 6 of Schedule 3 of the [1987] Act”.[87] This was consistent with the contract in place between the parties.
[87] Reasons, [105].
The employer submits that the icare NSW Wages Definition Manual is consistent with part of the payments to the worker comprising expenses (see [65] above). The insurer submitted, and the employer did not cavil with this, that the Manual was for use in the calculation of premiums, not the determination of a worker’s PIAWE. I do not see that the Manual can assist in construction of the legislation here at issue, going to the calculation of PIAWE. There is no developed submission dealing with why, on a legal basis, it would assist in the construction of the legislation. The employer also submits that s 174 is relevant to the calculation of the worker’s PIAWE. The Principal Member, in my view correctly, rejected this submission on the basis that the respective provisions in cl 2 of Sch 3, and s 174 of the 1987 Act, “relate to different subject matters”. The Principal Member said that “[t]he definition of wages in s 174(9) is in the context of the redetermination of premiums (s 173B) whilst clause 2 is described in terms of ‘earnings’ and ‘income’.”[88] I agree with the Principal Member’s view regarding s 174(9) on this point.
[88] Reasons, [103].
The employer relies on authorities relating to an earlier form of the legislation, that predate the commencement of the major amendments to the weekly payments regime contained in the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act). It is unnecessary, for current purposes, to deal at any length with the multiple complexities that governed the determination of weekly payments, during both total and partial incapacity, under the provisions applying prior to the 2012 Amending Act.[89]
[89] See by way of example Lawarra Nominees Pty Ltd v Wilson [1996] NSWCA 315; 25 NSWCCR 206; Cowra Shire Council v Quinn [1996] NSWCA 127; 13 NSWCCR 175; Lismore City Council v Garland (1992) 26 NSWLR 542; Johnston v Commissioner of Railways [1973] WCR 157; Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530; Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell); Singh v TAJ (Sydney) Pty Ltd [2006] NSWCA 330, 4 DDCR 557; Ric Developments Pty Ltd t/as Lane Cove Pool Mart v Muir [2008] NSWCA 155, 6 DDCR 339.
The employer refers to the judgment of Gibbs J in Nelson. That case involved a timber getter who was a deemed worker and was engaged in a business. The assessment at issue involved the deemed worker’s weekly entitlement under the former s 11(1) of the Workers’ Compensation Act 1926 during a period of partial incapacity. This required determination of “the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment” (the upper limb of the equation) and “the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury …” (the lower limb of the equation). Dealing with the upper limb, Gibbs J said: “one is in my opinion concerned with the net remuneration of the person deemed to be a worker, and not with his gross takings”.[90] His Honour (in the majority) went on to find that the trial judge had not determined either the upper or lower limbs of the equation, that this was an error of law, and that the matter should be remitted to the then Workers Compensation Commission of New South Wales for further consideration.[91]
[90] Nelson, 652.
[91] Nelson, 653.
The term ‘pre-injury average weekly earnings’ is specifically defined in cl 2(1) of Sch 3 to the 1987 Act, as “the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury”. This is consistent with the concept that gross earnings can be received “in any employment” within the terms of the definition. The upper limb of the s 11(1) equation, at issue in Nelson, contained no reference to gross earnings. I accept the insurer’s submission that the statutory test at issue in Nelson was different to that raised in the current proceedings going to the meaning of ‘pre-injury average weekly earnings’ (see [53] to [54] above). The decision in Grass, on which the employer also relied, like Nelson, fell under an earlier statutory regime. It can be readily distinguished on its facts. It does not assist in determining the issues in the current matter.
The insurer submits that the term ‘gross’ in the definition “should not be read down to mean ‘net’”. In Project Blue Sky the plurality said:
“Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that 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’.”[92] (excluding footnotes)
[92] Project Blue Sky, [71].
The word ‘gross’, in the construction for which the insurer contends, is given its plain and ordinary meaning. The employer has not suggested an alternative construction that would give meaning to the word ‘gross’ in the definition of ‘pre-injury average weekly earnings’.
The employer raises s 3 of the 1998 Act. It submits the Principal Member’s construction of the legislation dealing with PIAWE was inconsistent with two of the objectives in s 3, to promote the return to work of injured workers as soon as possible, and to be fair, affordable and financially viable.
Section 33 of the Interpretation Act 1987 provides that a construction that would promote the purpose or object underlying an Act should be preferred to a construction that would not.[93] In Lynn v State of New South Wales Beazley P said:
“The objects of the legislation may be relevant to the meaning to be given to provisions of the Act. However, the object provisions of an Act cannot control clear statutory language: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWSC 348; (1996) 91 LGERA 31 at 78. Further, there are many statutes where the objects of the Act are directed to disparate ends and are not necessarily harmonious. Nonetheless, as Gleeson CJ observed in Russo v Aiello [2003] HCA 53; 215 CLR 643 at [5], the statement of legislative objects is ‘not an exercise in apologetics’, rather, it gives practical content to terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’.”[94]
[93] See IW v City of Perth [1997] HCA 30, 191 CLR 1, 11.
[94] [2016] NSWCA 57, [54].
The basis of the employer’s reliance on the stated object that the system be “fair, affordable, and financially viable” is not specifically spelled out. I infer the basis of the submission is that weekly compensation payments, based on a higher PIAWE because it is calculated from a higher (gross) figure, is less conducive to the fairness, affordability and financial viability of the scheme. This is not self-evident. It was acknowledged, during the running of the proceedings at first instance, and in the Principal Member’s reasons at [26] to [27], that some expenses would be likely to continue while a deemed worker was off work due to injury. Items such as insurances are an obvious example. If the calculation of PIAWE was based only on net earnings this may arguably involve unfairness to a deemed worker with business earnings and expenses. The evidence does not illuminate the extent to which (if at all) the affordability and financial viability of the scheme are affected by the use of a gross figure in calculating PIAWE in such circumstances. Because earnings after expenses may be more complex to calculate, there may well also be greater administration costs in such an approach. This is speculation.
It has frequently been held that workers compensation legislation is of a beneficial nature and that a construction should be preferred which promotes that object (see Bird v Commonwealth[95]). In ADCO Constructions Pty Ltd v Goudappel the plurality said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the [1987 Act’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”[96]
[95] [1988] HCA 23; 165 CLR 1.
[96] ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1, [29].
The definition in its current form was introduced by the Workers Compensation Legislation Amendment Act 2018. To the extent that the test then introduced may be more beneficial to workers claiming under the legislation, one could not readily conclude that this was contrary to the objects of the legislation. At the least, I am not persuaded that the workers compensation legislation should be construed in such a way as to prefer the constructional choice that places the least financial demands on the scheme, so as to protect the system’s fairness, affordability and financial viability. This object from s 3 does not assist the employer.
The other object on which the employer relies is that at subcl (b) of s 3:
“(b) to provide—
• prompt treatment of injuries, and
• effective and proactive management of injuries, and
• necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible …”.

The matters nominated in subcl (b) go to the provision of prompt treatment, effective and proactive management of injuries, and medical and vocational rehabilitation. The reference to the “return to work as soon as possible” gives context to the provision of treatment and related services referred to in the subclause, it is the ultimate desired outcome from the provision of the described treatment. The employer’s argument is that the PIAWE of an injured deemed worker (such as in the current matter) may leave him better off than if he was working, as he would not be meeting all of his usual expenses. This, it is submitted, may be a disincentive for such a worker to return to work as soon as possible. This could conceivably be true in some instances, depending on the level of expenses, the extent to which the expenses continue while the worker is off work, whether the worker has ‘current work capacity’ and the entitlement period which is being compensated (see generally ss 36 to 38 of the 1987 Act). It is difficult, and essentially conjectural, to ponder the extent to which the application of ‘gross’ earnings could be a disincentive for some deemed workers.
The object in subcl (b) of s 3 does not impact significantly on the construction of the definitions going to PIAWE and earnings which are the subject of the current proceedings. Any significance it has is slight. As the insurer submits, the calculation of PIAWE by reference to gross earnings has the benefit of simplicity, a legislative choice. I do not accept the construction for which the employer argues. The Principal Member’s conclusion in his reasons at [104] to [105] was correct. I note that it was consistent with the Member’s decision in Eftimovski No. 1, confirmed in a Presidential appeal in Eftimovski No. 2. It was consistent with the approach in the passage from Alcan quoted at [66] above.
The employer’s solicitor, by email dated 25 October 2022, informed the Commission of a decision dated 5 October 2022, Cheung v Taiyun Oceania Travel Pty Ltd,[97] which involved issues going to the quantification of earnings. The employer’s covering email submitted that the decision of Cheung “confirmed the correctness” of the employer’s approach in the current matter. It submitted the Member in Cheung adopted “the labour value of the contract services” rather than “a figure based on gross receipts”. It accepted that Cheung involved a date of injury “prior to the PIAWE amendments”.
[97] [2022] NSWPIC 549 (Cheung).
The date of injury in Cheung was such that, applying the transitional provisions in the Workers Compensation Legislation Amendment Act 2018, the ‘Pre-injury average weekly earnings’ amendments, including amendment to the definition in sch 6 cl 2, did not apply. Cheung was argued and decided on the basis of an earlier form of the legislation dealing with weekly payments. The Member’s reasoning in Cheung relied heavily on the decision in Cage Developments Pty Ltd v Schubert.[98] Cheung does not offer guidance on the construction of the provisions at issue in this appeal, the amended provisions did not have application in Cheung.
[98] [1983] HCA 37; 151 CLR 584.
In SAS Trustee Corporation v Miles Edelman J said:
“In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where ‘the clearer the natural meaning the more difficult it is to justify departing from it’, so too in statutory interpretation ‘questions of degree arise’ and it will be more difficult to displace an interpretation that ‘has a powerful advantage in ordinary meaning and grammatical sense’.[99] (excluding footnotes, emphasis in original)
[99] [2018] HCA 55; 361 ALR 206, [64].
The Principal Member construed the definition of ‘Pre-injury average weekly earnings’ in a way consistent with the ordinary meaning and grammatical sense of the words. He did not err in doing so.

CONCLUSION

It follows from the above that the appeal, if it had met the threshold requirements of s 352(3) of the 1998 Act, would have failed in any event.

DECISION

The appeal cannot be brought as the monetary thresholds in s 352(3) of the 1998 Act are not satisfied and there is no right of appeal.

Michael Snell
Deputy President

6 December 2022