Vila v Essential Smash Repairs Pty Ltd (Deregistered)
[2022] NSWPIC 168
•20 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Vila v Essential Smash Repairs Pty Ltd (Deregistered) & others [2022] NSWPIC 168 |
| APPLICANT: | Michael Vila |
| FIRST RESPONDENT: | Essential Smash Repairs Pty Ltd (Deregistered) |
THIRD RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 20 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Calculation of pre-injury average weekly earnings; meaning of “actual earnings paid or payable” in section 44E(1)(b) of the Workers Compensation Act 1987 as in force at the date of injury; Speirs v Industrial Relations Commission of NSW; Flying Solo Properties Pty Ltd t/as Artee Signs v Collet; Held– finding that actual earnings paid or payable was the rate at which the worker was paid. |
| DETERMINATIONS MADE: | The Commission finds: 1. The applicant’s ordinary earnings for the purpose of s 44E(1)(b) of the Workers Compensation Act 1987 were $1,000 net per week. |
STATEMENT OF REASONS
BACKGROUND
Michael Vila commenced employment with Essential Smash Repairs Pty Limited (ESR) on 7 January 2013 as a full-time panel beater.
The dispute between Mr Vila and ESR is whether his pre-injury average weekly earnings (PIAWE) should be calculated on the basis of net weekly earnings of $1,000 or $1,100. In essence, Mr Vila argued that he should be paid the amount that was agreed with ESR. ESR argued that the agreement was irrelevant and that PIAWE should be calculated on the basis of what was paid.
The facts which follow are agreed.
On 20 February 2013, Mr Vila suffered an injury to his back at work. He did not report the injury because he was concerned that he would lose his job and because he thought he would recover.
On 11 April 2013, he contacted ESR’s workers compensation insurer, QBE Workers Compensation (NSW) Ltd and notified it of his injury. He told the insurer that he had not notified his employer because he was afraid of losing his job.
Mr Vila stopped working on 12 April 2013 and lodged a claim form. QBE commissioned a factual investigation. The investigator interviewed Mr Vila and Mr Silvestro, the principal of ESR.
On 13 May 2013 the insurer accepted liability for medical expenses.
Mr Vila attempted to continue working for other employers but was not able to continue after April 2014. After correspondence and a medical examination by Dr Cochrane, the insurer began to pay weekly compensation.
On 5 August 2015, the insurer made a work capacity decision and determined that:
(a) Mr Vila had a current work capacity for four hours per day on five days per week;
(b) three jobs were identified as suitable employment - spare parts interpreter, sales assistant and transport allocator, and
(c) Mr Vila was able to earn $502 per week in suitable employment.
The insurer determined that Mr Vila’s PIAWE were $1,000 per week. It reduced his weekly compensation to $298 per week, being 80% of $1,000 less $502.
On 27 October 2015 the insurer conducted an internal review of its work capacity decision. It confirmed that PIAWE were $1,000 and determined that Mr Vila had no current work capacity.
The insurer conducted a further internal review on 24 June 2016. It confirmed the calculation of PIAWE and did not accept Mr Vila’s contention that his PIAWE were $1,100. It issued a further work capacity decision on 11 July 2016.
Mr Vila sought a merit review from the State Insurance Regulatory Authority and the reviewer determined that PIAWE were $1,000.
The insurer made a further work capacity decision on 30 August 2016 in which it determined that Mr Vila’s PIAWE were $1,269 because his net weekly earnings were $1,000.
Mr Vila continued to receive compensation on the basis that he had no current work capacity.
In early 2014, Mr Vila also began to suffer from neck and shoulder pain. Dr Herald recommended surgery and Mr Vila made a claim for the cost of the proposed surgery on the basis that the cause of the pain was his work as a panel beater with ESR. Liability was declined.
On 1 February 2021 the Workers Compensation Commission determined that Mr Vila had suffered an injury to his right shoulder on 12 April 2013, the last date of his employment.
Mr Vila underwent surgery on his right shoulder on 28 May 2021. He has been certified as having no current work capacity since then.
The neck and shoulder injury claim is managed by Insurance and Care NSW (icare). Though the relevant documents do not appear in the file, I was informed at the telephone conference that ESR was not insured as at April 2013 and the claim is handled by the Workers Compensation Nominal Insurer.
On 27 July 2021 icare determined that Mr Vila’s PIAWE were $1,270 gross which, with indexation, increased to $1,450 from 12 February 2021 and to $1,460 from 1 April 2021. The determination was based on a decision that Mr Vila was paid $1,000 net per week.
PROCEDURE
The claim was listed for conciliation conference and arbitration hearing on 24 February 2022 when of Ms Grotte of counsel appeared for Mr Vila and Mr Beran of counsel appeared for icare.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Counsel provided me with a copy of ss 44C to 44E of the Workers Compensation Act 1987 (the 1987 Act) as in force at the date of Mr Vila’s injury and agreed they were the provisions which applied. Ms Grotte informed me that the determination turned on the meaning of the words “paid or payable” in s 44E(1)(b)(i). When I asked whether there were any relevant authorities on the meaning of those words in this or other sections of the legislation, Counsel asked that I make an order for written submissions.
EVIDENCE
The following documents were in evidence and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply, and
(c) icare’s Application to Admit Late Documents dated 18 February 2022.
Because of the issues between the parties it is only necessary to consider the evidence which goes to the agreement made about Mr Vila’s earnings and the evidence about what he was paid.
Mr Vila made a statement on 8 November 2021 to which he attached a series of past statements.
He said that on 2 January 2013 he answered an advertisement for a permanent full-time panel beater which was in the Daily Telegraph. Mr Silvestro said that he was the owner of ESR. After Mr Vila described his 25 years’ experience as a panel beater his conversation with Mr Silvestro was to the following effect:
“Mr Silvestro: ‘You sound suitable, so what are you looking to earn in this job?’
I said: ‘I am looking to get $1,100 in the hand for a forty (40) hour week after tax and super.’
Mr Silvestro: ‘I am happy to pay you that. Why don't you come down to the shop today so I can meet you and you can have a look around.’
I said: ‘OK’
When I arrived at the shop and after I had a look around, Mr Silvestro said to me:
‘You can start on 7 January 2013, that when we open up after Christmas, but I have changed my mind regarding your pay. I will pay you $1,000 in the hand for a month to see how you work and after that I will increase your pay by $100 per week to $1,100 net.’”
Mr Vila said that he was unhappy with this but agreed and gave Mr Silvestro his banking details. He commenced on 7 January 2013 and worked 42.5 hours per week. On 7 February 2013 he checked his bank account and noted that he had not been paid $1,000. He gave Mr Silvestro a letter of resignation and said he was giving a week’s notice because Mr Silvestro had broken his promise about payment of $1,100 in the hand each week. Mr Silvestro said:
"Michael, you cannot resign. We are too busy. I am sorry. I will pay you the $1,100 net per week you are wanting. Just wait until the next pay cycle and I will fix it,"
Mr Vila accepted Mr Silvestro's apology and said:
"OK Paul I will keep working, but if you don't pay me properly, I will leave!"
On 16 February 2013, Mr Vila checked his back account and saw he had not been paid $1,100. He decided to give Mr Silvestro another week to adjust his pay. On 20 February, he suffered a back injury. He saw a chiropractor but kept working. He decided to give notice of his intention to resign when his back pain eased.
Mr Vila complained to the Fair Work Ombudsman and resigned.
Mr Vila attached the advertisement to the ARD. It is difficult to read but does not appear to include anything about payment. He also attached a copy of his draft resignation letter dated 8 February 2013 which did not provide any reason for his resignation. His complaint to the Fair Work Ombudsman set out a brief version of the history, noting that ESR had never paid the agreed amount and never provided pay slips.
Mr Vila said that Mr Silvestro failed to ensure that ESR remitted PAYG tax to the Australian Taxation Office (ATO) and failed to ensure that ESR made superannuation payments on his behalf “to the ATO”. He also failed to assist the enquiries made by Fair Work, the ATO or the liquidator of ESR.
Mr Vila’s bank statements show that $1,000 per week was deposited into his account. In the first week of employment when he worked for three days and in two weeks where he was not paid for sick leave, he was paid $600.
On 21 May 2015, a decision maker in the Review Teams of the Fair Entitlements Branch of the Commonwealth Department of Employment determined that Mr Vila’s weekly wage was $1,000 and that there was no evidence to substantiate that it was $1,100.
On 29 July 2016 a delegate in SIRA’s Workers Compensation Merit Review Service determined that Mr Vila’s PIAWE was $1,000.
Mr Silvestro’s statement dated 6 May 2013 was prepared by an investigator. He said that he was the “owner” of ESR. He said that Mr Vila worked from January 2013 on a casual basis at the flat rate of $1,000 per week and worked Monday to Friday 7.00am to 4.00pm. Without elaborating, Mr Silvestro said that Mr Vila’s work was below average, his aptitude was average and his attendance record was bad. He said Mr Vila was a slow worker.
Mr Silvestro said that Mr Vila said that he was not coming to work on 25 February 2013 because he had a cold and he did not report a back injury. He returned to work on the following day. He resigned in early February but did not provide a reason but Mr Silvestro asked him to complete the big jobs he was working on. He resigned again in April. He said that he was aware that Mr Vila was working somewhere else as a panel beater.
LEGISLATION
The parties agreed that the legislation to be applied was that in force at the date of the injury. The relevant sections of the 1987 Act are:
“44C Definition-pre-injury average weekly earnings
(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker,
means the sum of:
(a)the average of the worker's ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to:
(a)the average of the worker's ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and
(b)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(3) If a worker:
(a)was not a full time worker immediately before the injury, and
(b)at the time of the injury was seeking full time employment, and
(c)had been predominantly a full time worker during the period of 78 weeks immediately before the injury,
pre-injury average weekly earnings, in relation to that worker, means the sum of:
(d)the average of the worker's ordinary earnings while employed during the period of 78 weeks immediately before the injury (excluding any week during which the worker did not actually work and was not on paid leave) (the qualifying period), whether or not the employer is the same employer as at the time of the injury expressed as a weekly sum, and
(e)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(4) ...
44D Definitions applying to pre-injury average weekly earnings-relevant period
(1) Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:
(a)in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or
(b)in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.
(2) The relevant period, in relation to pre-injury average weekly earnings of a worker who, during the 52 weeks immediately before the injury, voluntarily (otherwise than by reason of an incapacity for work resulting from, or materially contributed to by, an injury that entitles the worker to compensation under this Act):
(a)alters the ordinary hours of work, or
(b)alters the nature of the work performed by the worker,
and, as a result, the worker's ordinary earnings are reduced, does not include the period before the reduction takes effect.
(3) If, during the period of 52 weeks immediately before the injury, a worker:
(a)is promoted, or
(b) is appointed to a different position,
(otherwise than on a temporary basis) and, as a result, the worker's ordinary earnings are increased, the relevant period in relation to the worker begins on the day on which the promotion or appointment takes effect.
44E Definitions applying to pre-injury average weekly earnings-ordinary earnings
(1) Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:
(a)if the worker's base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:
(i)the worker's earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,
(ii)amounts paid or payable as piece rates or commissions in respect of that week,
(iii)the monetary value of non-pecuniary benefits provided in respect of that week, or
(b)in any other case, the sum of the following amounts:
(i) the actual earnings paid or payable to the worker in respect of that week,
(ii)amounts paid or payable as piece rates or commissions in respect of that week,
(iii)the monetary value of non-pecuniary benefits provided in respect of that week.
(2) A reference to ordinary earnings does not include a reference to any employer superannuation contribution.”
SUBMISSIONS
Ms Grotte submitted that Mr Vila’s evidence has consistently said that there was a verbal agreement that he would be paid $1,100 net per week. His bank statements showed that he had only ever been paid $1,000 per week net though he had consistently complained about ESR’s underpayment. She said that he had worked for only six weeks before the injury to his back then worked for 7.5 weeks before he injured his neck and right shoulder. Mr Vila’s PIAWE is therefore calculated as the sum of the average of his ordinary earnings during the relevant period (s 44C(1)(a)). The relevant period is the period of continuous employment before the injury (s 44D(1)(b).
Ms Grotte said that the evidence of both Mr Vila and Mr Silvestro was that he was paid a flat rate per week which was not dependent on the number of hours worked. Therefore s 44E(1)(a) did not apply and s 44E(1)(b) did and his ordinary earnings should be paid on the basis of “actual earnings paid or payable”.
As to the meaning of “paid or payable”, Ms Grotte quoted the following passage from Speirs v Industrial Relations Commission of NSW[1] (Speirs) with respect to the use of the words is payable in the context of when a worker’s entitlement to compensation accrues. Giles JA with whom Allsop P and Hodgson JA agreed said:
[1] [2011] NSWCA 206.
“69 Many provisions in Pt 2 then regulate when compensation is payable. They need not be individually noted. The expressions ‘no compensation is payable’, ‘compensation is payable’ or ‘compensation is not payable’ are used frequently. So also are used the language that the employer ‘has become liable’ to pay compensation with corresponding reference to ‘the liability of the employer’ (eg s 18), and of an employer being ‘liable to pay compensation’ and ‘liability to pay compensation’ (eg ss 20, 22, 22A, 22B).
70 These provisions contain a distinction between compensation being payable and recovery of compensation, seen most clearly in s 23 which provides that ‘[c]ompensation under the Act is payable to a person, and proceedings for the recovery of compensation under this Act may be instituted ...’; see also ss 20, 24. Compensation is payable, and there is corresponding liability to pay compensation, by virtue of receiving an injury. Tribunal or court determination of liability to pay compensation is not necessary in order that compensation be payable and there be liability to pay compensation. .
71 One then goes to the other side of the coin, entitlement to receive compensation. In s 11A, whereby no compensation is payable for psychological injury caused by the reasonable actions of the employer, s 11A(4) provides that ‘any entitlement to compensation under this Act’ for a certain kind of injury is not affected. Section 18, concerned with insurers' liability in the case of progressive injury, includes in s 18(3) that if each of ‘the employers who is liable to pay the compensation’ is insured and ‘the entitlement of the worker ... to receive compensation is not disputed’, certain results follow. It is plain that entitlement to receive compensation subsists without tribunal or court determination. See also s 22A(8), from which the same is apparent.
72 Section 22 deals with apportionment of liability to pay compensation where there is more than one injury. By ss 22(2)(b), liability to pay compensation in the case of a partially incapacitated worker includes ‘a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated’. The apportionment need not be by the Workers Compensation Commission, and may be by agreement: s 22(3). This is consistent with entitlement to be compensated subsisting without tribunal or court determination.
73 Part 3 of the WC Act is headed ‘Compensation – benefits’. Various kinds of compensation benefits are stated, by way of lump sum, weekly payments, compensation for expenses, compensation for non-economic loss or compensation for property damage. The provisions frequently use the language of compensation payable; the amount of compensation payable by the employer; payment of compensation; liability to pay compensation; the employer being liable to pay expenses; and compensation payable by the employer. They also use the language that ‘the worker becomes entitled to’ payments of compensation (s 34); that ‘the worker would be entitled’ or ‘is not entitled’ to be compensated (s 39); of an existing incapacity ‘not entitling the worker to compensation’ (s 48); of ‘entitlement to compensation’ and ‘entitled to receive compensation’ (s 52A); that the worker is ‘entitled to receive [weekly payments]’ (s 53) or ‘not entitled [to weekly payments]’ (s 58); and that the worker is ‘entitled to receive compensation’ (s 65A, s 66, s 67, s 74, s 75) or ‘entitled to compensation’ (s 87B). This is not exhaustive.
74 The various references to entitlement again must include entitlement prior to or without any tribunal or court determination. In particular, in s 34 the first 26 weeks of a worker's incapacity are the period ‘after the worker becomes entitled to weekly payments of compensation in respect of the incapacity’. Section 66A provides for agreement between the worker and the employer or insurer as to compensation ‘to which the worker is entitled in respect of the injury’. It is not necessary to go through the provisions.
75 Sections 87D-87K deal with commutation of compensation. What is commuted is ‘a liability’ (s 87F(1)), and there can not be commutation without certification that the worker has been advised on the implications ‘with respect to any entitlement of the worker under this Act ... ‘ (s 87F(2)).
76 The language of compensation payable, an employer's liability to pay compensation and a worker's entitlement to compensation is used elsewhere in the WC Act, for example in Pt 5 dealing with common law remedies. Although without entire uniformity in the language, an employer's liability to pay compensation and a worker's entitlement to receive compensation each express compensation being payable. There is an entitlement to receive compensation by reason of the injury; the entitlement does not arise only when a tribunal or court determines that compensation should be paid.
77 The 1926 WC Act had provided in s 7(1), in similar manner to s 9 of the WC Act -
‘7(1) A worker who receives personal injury -
(a) in the course of his employment, whether at or away from his place of employment ...
... shall receive compensation from his employer in accordance with this Act.’
78 The 1926 WC Act had thereafter used the language of compensation payable, the employer being liable to pay compensation, and ‘shall receive compensation’; ‘shall be entitled to receive compensation’; ‘is entitled to receive compensation’; ‘entitled to compensation under this Act’; ‘entitled to receive from his employer by way of compensation’; and similar expressions of entitlement (or non-entitlement).”
Ms Grotte said that Arbitrator Harris (as he then was) followed and applied Speirs in Brassaud v Chubb Fire Safety Ltd[2], a decision about the operation of s 59A of the 1987 Act and interpreted “is payable” to mean “entitled to receive.” Ms Grotte said that “is payable” meant a “contingent liability” and that, despite the different context, “or payable” should be given the same meaning as the phrase was given in Speirs and Brassaud so that it is an “entitlement to receive.” She said that this approach was consistent with the purposive approach of statutory interpretation and that the purpose of the PIAWE provisions was beneficial – to ensure that workers were compensated appropriately early in the process and that they were paid in keeping with what they were paid and what they were promised to be paid. Ms Grotte said that was evident from the provision which deals with the promise of a promotion in Schedule 3 of the 1987 Act. She said that the sections should be construed in a way which ensured that workers subject to wage theft or underpayment would be properly compensated.
[2] [2014] NSWWCC 202.
Ms Grotte said that Mr Vila had consistently said that there was a verbal agreement that he would be paid $1,100 net per week. When he noted that he was not paid $1,100 after the first month, he was persuaded by Mr Silvestro not to resign on the basis that the underpayment would be rectified. Mr Vila made a number of complaints about the rate of pay and the complaint to the Fair Work Ombudsman was made before he ceased work. An early dispute with ESR’s insurer about whether Mr Vila was full-time or casual was resolved in his favour and it was determined that the amount deposited into his bank account was a net figure, based on gross pre-injury earnings received. Ms Grotte said that the calculation ought to reflect what Mr Vila was entitled to receive.
With respect to credit, Ms Grotte submitted that Mr Vila should be accepted because his account was consistent and there was contemporaneous evidence to support it. She said that Mr Silvestro’s account should not be accepted because he had not attended to his legal obligations about tax and superannuation.
Ms Grotte submitted that Mr Vila’s earnings should be calculated on the basis that the amount payable to him was $1,000 per week for the first four weeks ad $1,100 thereafter, an average of $1,071.42 per week.
ESR
Mr Beran prepared submissions for ESR. He noted that the meaning of “or payable” was considered by Roche DP in Flying Solo Properties Pty Ltd t/as Artee Signs v Collet[3] (Flying Solo) who determined that weekly compensation is payable when a worker has an entitlement to receive actual compensation because of a compensable work injury. In Hee v State Transit Authority[4] (Hee) Keating P referred to Roche DP’s statement and said that “where a word is used consistently in legislation it should be given the same meaning consistently.” ESR submitted that “the actual earnings paid or payable” means “ the actual earnings paid or entitled to be paid.”
[3] [2015] NSWWCCPD 14.
[4] [2018] NSWWCCPD 6 at [158].
Mr Beran said that Mr Vila has made complaints to a number of statutory bodies which had all determined that a weekly amount of $1,100 net was not payable.
With respect to the contract of employment, Mr Beran said that there was no evidence to establish that there was a binding contract that Mr Vila would be paid $1,100 after the first month. He noted that Mr Vila said in his statements dated 1 May 2013 and 8 November 2021 that Mr Silvestro said that he would pay $1,000 in the hand for a month “to see how you work” and then would increase his pay to $1,100 per week. ESR said that of there was to be an increase then it was at Mr Silvestro’s discretion. Mr Silvestro’s statement shows that he had a low regard for Mr Vila’s work. Rather than showing that the contract entitled him to an increase, he has shown that Mr Silvestro’s failure to exercise the discretion to increase his wages caused him to resign, as was his right.
With respect to credit, Mr Beran noted that Mr Vila’s statutory declaration dated 29 June 2016[5] in which he said that it was agreed that he would be paid $1,100 net per week was a false declaration, based on his other evidence. He said that the assertion that Mr Silvestro was an unreliable witness because he failed to comply with his obligations in respect of tax and superannuation was irrelevant.
[5] ARD p141.
Mr Beran said that Mr Vila’s PIAWE should be determined by reference to his actual earnings of $1,000 per week net.
FINDINGS AND REASONS
Case law
Speirs concerned an application for reinstatement under s 242 of the 1987 Act by a coalminer. The protection from dismissal as a result of an injury applies, as defined in s 240(2), to “a worker who receives an injury for which the worker is entitled to receive compensation under this Act…” A person is an employer of an injured worker only if the injury arose out of or in the course of employment with that person – s 240(3). The Industrial Relations Commission held that it did not have jurisdiction to determine if the worker was entitled to reinstatement because it did not have jurisdiction to determine if he was entitled to receive compensation.
The Court of Appeal considered the meaning of “entitled to”, noting that throughout the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998, “liability to pay compensation and the entitlement to receive compensation are used to express rights or obligations short of those determined by a tribunal or a court.”[6] Giles JA noted s 4, s 9 and s 9A and, in the paragraph before those quoted by Ms Grotte, said:
“Although the word ‘entitled’ is not there, a worker who receives an injury is entitled to compensation payable by the worker's employer.”[7]
[6] At [64].
[7] At [68].
It was in the context of entitlement to compensation that “payable” was considered. Giles JA considered other cases in the paragraphs after the passage quoted by Ms Grotte. His Honour concluded that section of his judgment:
“Respectfully differing from the Full Bench, in my opinion ‘entitled to’ in the definition in s 240(2) of the WC Act does not mean entitlement established by a determination of the Workers Compensation Commission or the District Court, or by decision of the Board. The entitlement is a right subsisting in law when there has been injury satisfying ss 4 and 9A of the WC Act. It may be recognised and given effect without tribunal or court determination, as will commonly be the case.”[8]
[8] At [85].
In Brassaud, Arbitrator Harris considered Speirs in the context of s 59A of the 1987 Act which provides that compensation is not payable in respect of medical treatment provided more than 12 months after a claim for compensation was made unless weekly payments of compensation are or have been paid or payable. Arbitrator Harris held that “payable” in s 59A referred to a contingent liability – where there is an entitlement to receive compensation by reason of the injury.[9]
[9] At [57].
Roche DP’s decision in Flying Solo also concerned s 59A. He said:
“I accept the Arbitrator’s statement in Brassaud v Chubb Fire Safety Ltd [2014] NSWWCC 202 that weekly compensation is ‘payable’, within the meaning of s 59A, when a worker has an entitlement to actually receive such compensation by reason of a compensable work injury. That can occur without a formal determination that it is payable (Speirs v Industrial Relations Commission of New South Wales[2011] NSWCA 206 at [61]). However, before it can be determined if weekly compensation is ‘payable’, one has to apply the terms of the legislation. That means applying one of the formulas in ss 36, 37 or 38, as discussed above.”
In summarising the operation of s59A, Roche DP said[10]:
“Section 59A works as follows:
(a) for the purposes of s 59A, weekly compensation is not ‘payable’ merely because a worker may have a future right to such compensation or merely because the ‘entitlement periods’, as defined in s 32A, have not expired;
(b) weekly compensation is ‘payable’ when a worker has an entitlement to receive actual weekly compensation by reason of a compensable work injury. That can occur without a formal determination that it is payable;”
[10] At [76].
In Hee, Keating P considered whether benefits were payable under s 38A of the 1987 Act where there is no other entitlement to weekly compensation. His Honour quoted the passage from Flying Solo set out immediately above and said:
“Although I accept that these observations are in the context of a different provision within the same statute, where a word is used consistently in legislation it should be given the same meaning consistently. In Craig Williamson Pty Ltd v Barrocliff Hodges J held:
‘I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.’”
Consideration
All of those cases deal with the question of whether compensation is payable because there is an entitlement to receive compensation on the basis that certain provisions of the legislation have been fulfilled. Section 44E(1)(b) refers to “earnings paid or payable” which is arguably a different concept to “compensation paid or payable.”
The task of interpreting it begins with the text itself - Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[11]. In the same case, French CJ said that the starting point is “the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose.”[12]
[11] (2009) 239 CLR 27, 46.
[12] At [31].
The purpose of the sections is to calculate PIAWE which will be used to assess a worker’s entitlement to weekly compensation. They look at what has been paid in the past so that post-injury payments are consistent with past earnings.
Section 44C provides that the calculation of PIAWE is based on the average of the worker’s ordinary earnings during the relevant period. Section 44D defines the relevant period and s 44E defines “the ordinary earnings of a worker in relation to a week during the relevant period”. If a worker is not paid by reference to an hourly rate, ordinary earnings are calculated by reference to “actual earnings paid or payable …in respect of that week”.
It is important that all of the words in the section be considered. In Project Blue Sky v Australian Broadcasting Authority[13] McHugh, Gummow, Kirby and Hayne JJ 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’.
[13] [1998] HCA 28; 194 CLR 355; 153 ALR 490;72 ALJR 841.
Mr Vila’s construction does not take account of the use of “actual” in sub-s (b)(i). Actual connotes what did occur rather than what Mr Vila says should have occurred.
“That week” in sub-s (b)(i) refers back to the reference to “a week” at the beginning of s 44E(1) so that it refers to an amount which is paid or is to be paid because of work which has been done or would have been done if the full week had been worked. It suggests an amount which the worker earns in ordinary circumstances, on a week to week basis and the amount which he has been receiving.
I accept that Mr Vila did discuss payment at the rate of $1,100 and that Mr Silvestro agreed to increase his pay subject to “seeing how he went.” His pay was not increased at the expiry of the first month and he may well have had a legitimate complaint about that and other employment entitlements. However, his actual earnings were $1,000 net throughout the period of his employment.
I therefore find that Mr Vila’s ordinary earnings for the purpose of s 44E(1)(b) of the 1987 Act were $1,000 net per week.
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