Vostek Industries Pty Ltd v White - [2018] NSWWCCPD 47

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Vostek Industries Pty Ltd v White [2018] NSWWCCPD 47
APPELLANT:	Vostek Industries Pty Ltd
RESPONDENT:	Brett White
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-5349/17
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	19 June 2018
DATE OF APPEAL DECISION:	8 November 2018
SUBJECT MATTER OF DECISION:	Statutory construction; s 38A of the Workers Compensation Act 1987; whether word “amount”, where it is used for the second and third time in s 38A(1), is a reference to the amount of weekly compensation payments only or to a combined total of weekly compensation payments and earnings; Hee v State Transit Authority of NSW [2018] NSWWCCPD 6 considered
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Malouf Solicitors
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 19 June 2018 is confirmed.

INTRODUCTION

This appeal concerns the construction of s 38A of the Workers Compensation Act 1987 (the 1987 Act). Section 38A(1) provides:
“38A Special provision for workers with highest needs
(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.”
The question on appeal is whether on its proper construction the word “amount”, where it is used for the second and third time in s 38A(1) of the 1987 Act, is a reference to the amount of weekly compensation payments only or to a combined total of weekly compensation payments, earnings or deemed earnings and the value of any non-pecuniary benefits received.

BACKGROUND

On 20 July 2005, Mr White injured his right wrist when moving heavy click lock sheets in the course of his employment as a roof plumber with the appellant, Vostek Industries Pty Limited. The appellant’s insurer accepted liability for the injury and paid weekly compensation and medical expenses.
In February 2009, Mr White ceased work for the appellant.
On 23 August 2010, Dr Crane, an Approved Medical Specialist, assessed Mr White to have 32% whole person impairment of the right upper extremity due to the injury sustained on 20 July 2005. It is not disputed that Mr White is a “worker with highest needs” as defined in s 32A of the 1987 Act.
On 19 August 2011, Mr White commenced employment with MMP Industrial Pty Ltd (MMP). His duties were in relation to the manufacture and mixing of paints.
On 12 May 2016, Mr White’s legal representative wrote to the insurer seeking weekly payments be adjusted to the minimum prescribed rate pursuant to s 38A(1) of the 1987 Act.
On 15 July 2016, the insurer advised that Mr White was only entitled to the difference between his pre-injury average weekly earnings as assessed under ss 37 and 38 of the 1987 Act and his current earnings. That is, he was only entitled to receive $315.50 per week which was the difference between $1,300 (80% of his Pre-Injury Average Weekly Earnings (PIAWE)) and $984.50 (his actual earnings). There was a further exchange of correspondence regarding the interpretation of s 38A of the 1987 Act.
On 13 January 2017, Mr White resigned from his employment with MMP due to health reasons.
On 1 May 2017, Mr White commenced employment with K J Nuthall and N L Nuthall t/as Countrybuilt Homes and Kitchens. In November 2017, Mr White ceased that employment.
On 20 October 2017, Mr White lodged an Application to Resolve a Dispute (Application). The Application was amended at a telephone conference before Senior Arbitrator Capel on 4 April 2018. Mr White claimed weekly compensation pursuant to s 38A of the 1987 Act in respect of the accepted injury to the right wrist on 20 July 2005. Mr White claimed weekly compensation from 17 September 2012 to 13 January 2017 and from 1 May 2017 to 20 November 2017.
On 4 December 2017, the insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The insurer disputed that s 38A(1) of the 1987 Act could be read as to allow Mr White an entitlement to receive weekly compensation in excess of 80% of his PIAWE, as assessed under ss 36, 37 or 38 of the 1987 Act. It claimed that cl 35(1) of Pt 3 of Sch 6 of the Workers Compensation Regulation 2016 (the 2016 Regulation) provides that s 38A did not apply to compensation payable in respect of a period of incapacity prior to 17 September 2012.
On 17 January 2018, the matter was referred to Senior Arbitrator Capel for conciliation and arbitration hearing. Following the conciliation proceedings, the Senior Arbitrator directed the parties to file submissions concerning the application of the decision in Hee v State Transit Authority of NSW[1] on the issues before him. Following the filing of further submissions and documentation, the parties agreed that the only issue in dispute was the quantification of Mr White’s entitlement to weekly compensation pursuant to s 38A of the 1987 Act.
[1] [2018] NSWWCCPD 6 (Hee No 2).
On 19 June 2018, the Senior Arbitrator issued a Certificate of Determination and statement of reasons in favour of Mr White. The Senior Arbitrator found that, pursuant to s 38A of the 1987 Act, Mr White was entitled to $788.32 (as adjusted) in weekly payments of compensation, in addition to his earnings. The Certificate of Determination records:
“The Commission determines:
1.     The applicant sustained an injury to his right wrist arising out of or in the course of his employment on 20 July 2005.
2.     The applicant’s employment was a substantial contributing factor to his injury.
3.     The applicant has received varying rates of weekly compensation for all relevant periods.
4.     The applicant had the capacity to undertake some work as a consequence of his employment injury from 17 September 2012 to 13 January 2017 and from 1 May 2017 to 20 November 2017.
5.     The applicant was assessed by an Approved Medical Specialist on 23 August 2010 as having 32% whole person impairment of the right upper extremity due to injury sustained on 20 July 2005.
6.     The applicant is a worker with highest needs.
7. The applicant is entitled to any payments of weekly compensation pursuant to section 38A of the Workers Compensation Act 1987.
The Commission orders:
8. The respondent is to pay the applicant $788.32 per week as adjusted from 17 September 2012 to 13 January 2017 and from 1 May 2017 to 20 November 2017 pursuant to section 38A of the Workers Compensation Act 1987.
9.     The respondent is to have credit for weekly payments made during these periods.
10.   No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The appellant appeals against the Senior Arbitrator’s decision.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) 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 without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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 quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

This appeal turns on the construction of s 38A of the 1987 Act. There are no disputed facts. Therefore, in the circumstances, it is not necessary to reproduce the evidence.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator recorded the parties’ agreement that the only issue in dispute was:
“Quantification of [Mr White’s] entitlement to weekly compensation – s 38A of the 1987 Act”[2]
[2]White v Vostek Industries Pty Ltd [2018] NSWWCC 161 (Reasons), [18].
The Senior Arbitrator recorded the relevant documentary evidence, including the PIAWE, actual earnings and list of payments made. The Senior Arbitrator then succinctly summarised the parties’ submissions, before recording the relevant legislation.
The Senior Arbitrator noted the need to have regard to the principles of statutory interpretation to determine Mr White’s entitlement to weekly compensation. He then summarised the relevant principles for statutory interpretation referring to the High Court decision in Project Blue Sky[3] and Alcan.[4] The Senior Arbitrator extracted a quote from a Presidential Decision in Hesami v Hong Australia Corporation Pty Ltd,[5] which set out a summary of the principles of statutory interpretation set out in Wilson v State Rail Authority of New South Wales.[6] Having considered those authorities, the Senior Arbitrator stated that the task of statutory construction required one to “look at the text, language and structure of the legislation, the legal and historical context, and the purpose of the statute in order to come to a reasonable conclusion as to its meaning and application.”[7]
[3]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
[4]Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan).
[5] [2011] NSWWCCPD 14.
[6] [2010] NSWCA 198.
[7]White v Vostek Industries Pty Ltd NSWWCC 160 (Reasons), [65].
The Senior Arbitrator turned his mind to his decision in Hee v State Transit Authority of NSW[8] and the decision on appeal, Hee No 2, which concerned the application of s 38A of the 1987 Act. The Senior Arbitrator analysed the reasoning in those decisions.
[8] [2017] NSWWCC 252 (Hee No 1).
The Senior Arbitrator noted that cl 9 of Pt 19I of Sch 6 to the 1987 Act provides that s 38A of the 1987 Act extends to the determination of compensation payable in respect of any period of incapacity occurring before the commencement date, but this is subject to cl 35 of Sch 8 of the 2016 Regulation. Section 38A commenced on 4 December 2015. Clause 35 of Sch 8 to the 2016 Regulation provides that s 38A does not apply in respect of any period of incapacity prior to 17 September 2012.
The Senior Arbitrator stated that:
“Section 38A of the 1987 Act specifically provides that if the calculation of the amount of weekly payments of compensation payable to a worker with highest needs results in an amount that is less than $788.32, the amount is to be treated as $788.32 as adjusted from time to time.”[9]
[9] Reasons, [83].
The Senior Arbitrator drew the following conclusions. Firstly, Mr White had been paid weekly compensation for all relevant periods since the commencement of his claim on 17 September 2012. He received various rates of weekly compensation during the periods of the claim. Secondly, Mr White was an existing recipient and was transitioned under the 2012 amendments in early October 2012. Thirdly, Mr White’s PIAWE was agreed in the sum of $1,625 per week (as adjusted, according to s 82A of the 1987 Act). Thirdly, Mr White’s entitlements to weekly payments of compensation fall after the second entitlement period, under s 38 of the 1987 Act.
The Senior Arbitrator then referred to the three criteria set out in Hee No 2, to satisfy an entitlement to s 38A of the 1987 Act. Firstly, there must be a determination of weekly compensation payable in accordance with Subdiv 2. That is, in this instance, in accordance with s 38(7) of the 1987 Act. Secondly, there must be an amount of compensation “payable”. Thirdly, the amount of compensation payable is less than the prescribed rate under s 38A of $788.32, as adjusted. The Senior Arbitrator observed that Mr White had “suffered a wage loss at all times during the period of the claim ranging from $342.97 and $652.44 per week”.[10] That constituted a “payable” amount of compensation that was less than the prescribed rate, of $788.32 as adjusted.
[10] Reasons, [93].
The Senior Arbitrator observed the appellant’s submission that the words “amount” in s 38A of the 1987 Act do not need to have the same meanings. However, the Senior Arbitrator found that s 38A:
“directs that the actual difference calculated in accordance with the subdivision, in this case s 38(7) of the 1987 Act, is to be ignored and is substituted or ‘treated’ as $788.32. The fact that the legislators used the words ‘the amount is to be treated as’ rather than ‘the amount is’ is irrelevant. Their intention and meaning is clear and unambiguous.”[11]
[11] Reasons, [95].
It followed that Mr White satisfied the criteria in s 38A(1) of the 1987 Act. Mr White was entitled to receive weekly compensation in the sum of $788.32 per week as adjusted from 17 September 2012 to 13 January 2017 and from 1 May 2017 to 30 November 2017, less any payments already made, pursuant to s 38A.
The Senior Arbitrator further observed that:
“Section 38A of the 1987 Act does not prescribe a maximum amount payable under the section. Rather it prescribes a minimum amount of compensation payable to a worker with highest needs, who has an entitlement to an amount of weekly payments of compensation payable in accordance with the subdivision.”[12]
[12] Reasons, [97].
The Senior Arbitrator found that such an outcome can result in receiving weekly payments of compensation in excess of a worker’s PIAWE. He noted that while this may appear to be an anomaly:
“… s 38A of the 1987 Act does not limit any amount received by an injured worker to a figure equivalent to his or her PIAWE. Had that been the intention of the legislators, they would have specifically included an upper limit in the section. This is an example of the beneficial nature of the legislation in respect of workers with highest needs.”[13]
[13] Reasons, [98].
The Senior Arbitrator concluded that the clear and unambiguous words of s 38A of the 1987 Act provide that “… in the case of a worker with highest needs, compensation is payable in the sum of $788.32 per week as adjusted if the worker has established that there is an amount of weekly compensation ‘payable’ in accordance with ss 34 to 38 of the 1987 Act.”[14] That is what Mr White established and something that Mr Hee (in Hee No 1 and Hee No 2) was unable to do.
[14] Reasons, [99].

GROUNDS OF APPEAL

The only issue in dispute on this appeal is whether the Senior Arbitrator erred by:
(a) misconstruing s 38A of the 1987 Act by finding that it authorises the payment of weekly compensation of $788.32 (as adjusted) to a worker with highest needs, without taking into account the worker’s earnings.

LEGISLATION

The relevant legislation is extracted below.
Section 32A of the 1987 Act provides:
“32A Definitions
In this Division and in Schedule 3:
...
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
....
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
...
pre-injury average weekly earnings—see section 44C.
...
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a)     having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.
work capacity assessment means a work capacity assessment under section 44A.
work capacity decision—see section 43.
...
worker with highest needs means a worker whose injury has resulted in permanent impairment and:
(a)     the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b)     an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
Section 38 of the 1987 Act provides:
“38 Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(1)     A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the Insurer as having current work capacity is entitled to compensation after the second entitlement period only if:
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4)     An insurer must, for the purpose of assessing an injured worker's entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted:
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note: An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5)     An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(7)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(8)     A worker's entitlement to compensation under this section may be reassessed at any time.”

Section 38A of the 1987 Act provides:
“38A Special provision for workers with highest needs
(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.

(2) If the amount specified in subsection (1) is varied by operation of Division 6A, a weekly payment of compensation payable to a worker with highest needs before the date on which the variation takes effect is, for any period of incapacity occurring on and after that date, to be determined by reference to that amount as so varied.”

Section 44C of the 1987 Act contains a definition of the PIAWE. It provides:
“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).”

WORKERS COMPENSATION BENEFITS GUIDE

The Workers Compensation Benefits Guide October 2017 (the Benefits Guide) issued by the State Insurance Regulatory Authority provides some guidance in respect of the payment of weekly benefits to workers with highest needs as follows:
“Weekly payments
Workers with high needs (more than 20 per cent permanent impairment) who have been assessed by an insurer as having current work capacity, will no longer be required to work at least 15 hours per week to receive weekly payments after the end of the second entitlement period (130 weeks or 2.5 years).
Workers with more than 30 per cent permanent impairment now have access to a minimum weekly amount of $788.32 per week. If the worker’s income (made up of weekly payments and any earnings) falls below $788.32, the insurer will increase the weekly payments to this amount. The change applies to all weekly payments on or after 17 September 2012. This amount will be indexed in April and October each year. The first indexed adjustment review date is 1 April 2016…”
And:
“Special provision for workers with highest needs
Workers with highest needs (more than 30 per cent permanent impairment) have access to a minimum weekly payment of compensation of $788.32 per week. If the worker’s determined weekly payment of compensation that the worker is entitled to receive is below $788.32, the insurer will increase the weekly payments to this amount. This amount will be indexed in April and October each year. The first indexed adjustment review date is 1 April 2016.”

SUBMISSIONS

Appellant’s submissions

The appellant submits that s 38A of the 1987 Act provides for a worker with highest needs to receive a minimum amount of $788.32 per week (as adjusted), being a combined total of weekly compensation payments, any earnings or deemed earnings and the value of any non-pecuniary benefits received.
The appellant submits that the Senior Arbitrator erred in rejecting its submissions that:
(a) Section 38A(1) of the 1987 Act should not be construed so as to give a worker an entitlement to more than his PIAWE as this is contrary to a scheme that provides for a worker to be compensated and not to profit from the injury.
(b) The term “determination” in s 38A of the 1987 Act must take into account the worker’s actual earnings in accordance with ss 36(2) and 37(3) and the word “amount” (where it appears for the second time) means the combined total of compensation and earnings.
(c) An interpretation of s 38A of the 1987 Act which would allow a worker to receive an income in excess of the worker’s PIAWE would be contrary to the description of payment as “compensation” and would not reflect the intention of the legislature, as expressed in the text of the legislation and in the extrinsic materials.
The appellant does not dispute the Senior Arbitrator’s summary of the relevant principles of statutory interpretation. However, the appellant submits that the Senior Arbitrator erred in failing to deal in any detail with, or apply, the following principles:
“1.     context may be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and while the ‘task of construction begins, as it ends, with the statutory text … the statutory text from beginning to end is construed in context’ [SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936, Gageler J at 944 [36]–[37], with reference to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. See also (in SZTAL) Kiefel CJ, Nettle and Gordon JJ at 940–941 [14]];
2.      where open, a court will prefer an interpretation which avoids consequences that are anomalous, unlikely or unreasonable. [Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 322; Shahi v Minister for Immigration & Citizenship (2011) 246 CLR 163, French CJ, Gummow, Hayne and Bell JJ at 177 [38]; Dale v R [2012] VSCA 324; (2012) 44 VR 164 at 178–180] Further, ‘departing from the literal meaning of a statutory provision may be permissible where the literal reading does not conform to the legislative intent as ascertained from the provisions of the statute as a whole, including the policy which may be discerned from those provisions’ [Director of Public Prosecutions v Leys (2012) 44 VR 1 at 18, [52] per Redlich and Tate JJA, T Forrest AJA];
3.      extrinsic material may be considered to determine the meaning of a provision if the ordinary meaning conveyed by the text of the provision (taking into account its context and the Act’s purpose) leads to a result that is unreasonable [Interpretation Act 1987, s 34(1)(b)(ii)];
4.      a construction that would promote the purpose underlying an Act is to be preferred to one which would not do so. [Interpretation Act 1987, s 33]”

Statutory construction

The appellant relied on the High Court’s decision in SZTAL v Minister for Immigration and Border Protection[15] on the consideration of context in the interpretation of a statutory provision. The appellant submitted that the context of s 38A of the 1987 Act is important. The section is located in Subdiv 2 (“Entitlement to weekly compensation” of Div 2 of Pt 3 of the 1987 Act). Subdivision 2 provides, in s 33, for weekly compensation where “total or partial incapacity for work results from an injury”.
[15] [2017] HCA 34; 91 ALJR 936 (SZTAL).
The term “compensation” is defined in s 4 of the 1998 Act and s 3(1AA) of the 1987 Act to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. It is submitted that “compensation” has its ordinary meaning, but that this ordinary meaning is limited to compensation “under the Workers Compensation Acts”. The ordinary meaning of “compensation” according to the Macquarie Dictionary, so it was submitted, is “something given or received as an equivalent for services, debt, loss, suffering, etc.; indemnity”. The appellant added that while “… compensation includes ‘any monetary benefit’ under the Workers Compensation Acts, the sense in which it is used in Subdivision 2 is money given to compensate a worker for the loss of income.”
The entitlement of weekly compensation provided by s 33 of the 1987 Act is qualified by the maximum amount of compensation provided by s 34 of the 1987 Act and the periods of weekly entitlement under ss 36–38 of the 1987 Act.
Leaving s 38A of the 1987 Act to one side, the scheme for payment of weekly compensation, as set out in Subdiv 2, “evinces an intention that a worker should be compensated at a rate which is lower than that of the worker’s PIAWE, and which also takes into account other benefits the worker is receiving from an employer.” The legislation provides for a worker to receive a high proportion of his or her PIAWE as weekly compensation, adjusted to allow for both “the amount to be taken into account as the worker’s earnings after the injury” and non-pecuniary benefits provided by the employer, where relevant.
It is submitted where a worker has current work capacity, the amount to be taken into account as the worker’s earnings after injury is the greater of the amount the worker is actually earning and the amount the worker is able to earn in suitable employment.[16] This, so it is submitted, demonstrates a legislative concern that the worker not be compensated in respect of an amount he or she is able to earn, even if he or she is not in fact earning that amount. The provision for deductions for non-pecuniary benefits also demonstrates a legislative intention that the worker not receive compensation beyond 80% or 95% of PIAWE, as the case may be. This ensures that a worker “may not profit or benefit unfairly from weekly compensation payments”.
[16] Citing, Workers Compensation Act1987 (the 1987 Act), ss 35(1) (definition of “E”), 36(2), 37(2)–(3) and 38(7).
There is a legislative intention to treat a worker with high needs more favourably. A worker with high needs, who is assessed by the insurer as having current work capacity, is entitled to compensation after the second entitlement period. That entitlement is not dependent upon the worker returning to work for 15 hours per week or the insurer’s assessment that the worker is incapable of undertaking further additional employment, as is the case for other workers.[17] However, such a worker is still subject to deductions for “the amount to be taken into account as the worker’s earnings after the injury”.[18] Therefore, the “legislature’s favourable treatment does not extend to allowing the worker to profit from weekly compensation or unfairly take advantage of it by choosing not to work when he or she is able to do so.”
[17] Citing, the 1987 Act, ss 38(3A), 38(3)(b) and (c).
[18] Citing, the 1987 Act, ss 35(1) (definition of “E”), 38(7).
Contrary to Senior Arbitrator Capel’s reasons,[19] s 38 of the 1987 Act provides guidance with respect to the calculation of benefits for a worker with high needs. Section 38 provides for the calculation for weekly compensation for all workers after the second entitlement period and subject to a worker with highest needs meeting the criteria in s 38(2) or (3A), such a worker is entitled to compensation in accordance with the formula in s 38(6) or (7).
[19] Citing, Reasons, [82].
In that context, the purpose of Subdiv 2 is to ensure that workers (including those with highest needs) are compensated for a work-related injury by receiving a weekly sum which is equivalent to a high proportion of their PIAWE, taking into account compensation payments and other earnings or employment benefits the worker is receiving or capable of receiving.
Construing the text of s 38A(1) of the 1987 Act consistently with the purpose evinced in the other provisions in the Subdivision, the phrase “an amount that is less than $788.32” in s 38A(1) must refer to the amount of a worker’s combined weekly compensation payments, non-pecuniary benefits and earnings or deemed earnings. Similarly, in order to give effect to the purpose of Subdiv 2, the phrase “the amount is to be treated as $788.32” must refer to the same amount. Such a construction, so it is submitted, promotes the purpose of Subdiv 2 “to provide workers with weekly compensation benefits which, when combined with the worker’s earnings or deemed earnings and any non-pecuniary benefits received, provides the worker with a high proportion of his or her PIAWE.”

A construction resulting in anomalous consequences should be avoided

The Senior Arbitrator’s construction of s 38A of the 1987 Act leads to a result which is “anomalous, unlikely and unreasonable.”[20] The appellant submits that it:
“… would be anomalous if the legislation applied a formula to determine the entitlement of a worker with highest needs under ss 36, 37 and 38 [of the 1987 Act], which was premised on the proposition that a worker should not receive more than a (high) percentage of the worker’s pre-injury earnings, when taking into account current or deemed earnings, non-pecuniary benefits and weekly compensation payments; then depart from that principle when setting a minimum amount of compensation in s 38A.”
[20] Citing, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 (Cooper Brookes), 322; Shahi v Minister for Immigration & Citizenship (2011) 246 CLR 163 (Shahi) (per French CJ, Gummow, Hayne and Bell JJ), 177 [38]; Dale v R [2012] VSCA 324; 44 VR 164 (Dale), 178–180.
The appellant submitted that it is appropriate to depart from the literal meaning of a provision if that meaning is inconsistent with the legislature’s purpose and would lead to an unreasonable or improbable result.[21] The literal or “ordinary” meaning of the words in s 38A of the 1987 Act is that the amount of weekly compensation payments is to be treated as $788.32, without having regard to any income earned, or capable of being earned, by a worker.
[21] Citing, Cooper Brookes, 322; Shahi, 177 [38]; Dale, 178–180.
The literal meaning of s 38A(1) of the 1987 Act does not conform to the legislative intention as ascertained from the provisions of the 1987 Act as a whole, including the policy which may be discerned from those provisions.[22] For that reason, so it is submitted, the preferable construction of the provision is that the worker’s PIAWE and any deductible amount are to be taken into account when determining the amount of weekly payments of compensation payable to a worker with highest needs under s 38A(1).
[22] Citing, Director of Public Prosecutions v Leys (2012) 44 VR 1 (Leys), 18, [52] (per Redlich and Tate JJA, T Forrest AJA).

Textual support for the appellant’s preferred construction

There is textual support for the above construction. The concept of “compensation” in s 38A(1) of the 1987 Act, means “something given or received as an equivalent for … loss”, would be distorted if s 38A(1) were interpreted to mean that the amount payable could be greater than the worker’s PIAWE. The “weekly payments of compensation” would no longer be such, but would rather be additional “bonus” earnings. This arbitrary result is contrary to the legislative intention as expressed in every other provision in Subdiv 2.
The appellant submits that:
“The words ‘in accordance with this Subdivision’ in s 38A(1), whilst referring to the determination of the amount of weekly payments of compensation payable to the worker, express a general legislative intention that s 38A(1) is to be consistent with the Subdivision. It is unlikely that the legislature would have intended an outcome which was inconsistent with (not ‘in accordance with’) Subdivision 2, being that the worker was entitled to profit from payments from an insurer. Section 38A(1) contemplates that a determination has been made ‘in accordance with’ ss 36–38, all of which preclude a worker from recovering more than a percentage of his or her PIAWE. It would be strange indeed if, having determined a worker’s entitlement ‘in accordance with’ those provisions, s 38A(1) provided for a result which undermined the principles on which those provisions were built.”
The word “amount” in s 38A(1) of the 1987 Act, where it appears for the second and third time, means a worker’s combined total of compensation and earnings. That is the meaning which is most “consistent with the language and purpose of all the provisions of the statute” and which best maintains “the unity of the statutory scheme” so that the provisions of the 1987 Act “give effect to harmonious goals.”[23]
[23] Citing, Project Blue Sky, 381–382 (per McHugh, Gummow, Kirby and Hayne JJ).

Extrinsic materials

The second reading speech and Explanatory Note to the bill introducing s 38A of the 1987 Act confirm the appellant’s construction. The ordinary meaning conveyed by the text of s 38A(1), taking into account its context and the Act’s purpose, leads to a result that is unreasonable.[24] The appellant submits that it is unreasonable because it allows a worker, such as Mr White, to profit from payments made by an insurer. Such payments are “no longer compensatory”.
[24] Citing, Interpretation Act 1987, s 34(1)(b)(ii).
Context may be considered in the first instance, irrespective of ambiguity. This is not a case of relying on extrinsic materials to displace the clear terms of the legislation. It is a case of construing a provision in its context understood in the “widest sense” to include the immediate statutory context, the legislative history and the mischief the provision was intended to remedy.[25]
[25] Citing, SZTAL, 914 [14] (per Kiefel, Nettle and Gordon JJ); Yarham v Transport Accident Commission of Victoria & Ors [2017] NSWCA 301, [135]–[138].
It is apparent from the second reading speech and the Explanatory Note that the mischief s 38A of the 1987 Act was intended to address was the situation where workers with a high degree of permanent impairment could otherwise receive less than $788, due to having very low pre-injury average weekly earnings.
The Senior Arbitrator’s construction does not assist workers having very low pre-injury average weekly earnings and it allows some workers with high pre-injury average weekly earnings to profit from compensation payments. This, so it is submitted, leads to a result which is “arbitrary or capricious and which does not reflect the legislature’s purpose”.

Beneficial Construction

While there is no doubt that the workers compensation legislation is beneficial in nature, it is important to remember that “to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used.”[26] Where the question concerns the meaning of particular words rather than the question of whether to give a provision a broad or narrow construction, the circumstance for a liberal application may not arise.[27]
[26] Citing, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 (NSW Aboriginal Land Council), [33].
[27] Citing, NSW Aboriginal Land Council, [33].
The appellant submits:
“Subdivision 2 evinces a legislative intention to balance the needs of workers with the interests of employers and insurers. This is consistent with the objective of the scheme to provide injured workers with ‘income support during incapacity’ and also ‘to be fair, affordable, and financially viable.’ The interests of employers and insurers are recognised by the provision for workers to receive a high proportion of their PIAWE as weekly income, when taking into account other income, and not to receive more than this.”[28]
[28] Citing, Explanatory Note, Workers Compensation Amendment Bill 2015.
To recognise the beneficial nature of s 38A of the 1987 Act does not assist in resolving the central issue of interpretation. That is, whether the intended benefit is to provide a minimum amount for workers with highest needs, being a combined total of compensation and earnings, or whether that minimum amount is to be only compensation, irrespective of any amount earned. The proper interpretation of s 38A is to be achieved by reference to its purpose, understood in the context of the harmonious goals sought to be achieved by the other provisions of Subdiv 2.

Respondent’s submissions

The respondent submits that s 38A of the 1987 Act is a special provision for workers with highest needs, which provides such workers with weekly compensation benefits greater than other workers. However, the additional weekly compensation benefits are only payable if certain conditions are satisfied as set out in Hee No 2.

Although the appellant’s interpretation would appear to accord with the intention expressed in the second reading speech and explanatory note, s 38A of the 1987 Act makes no reference to actual earnings either expressly or by inference. Section 38A provides that the weekly payments of compensation is to be a minimum of $788.32, not the result of the calculations in ss 36 and 37 of the 1987 Act to be a minimum of $788.32.[29]
[29] Citing, O’Donnell v Abroandco Pty Ltd [2016] NSWWCC 129.
The benefits provided by s 38A of the 1987 Act are only payable where a worker has established that there is an amount of weekly compensation payable, applying the provisions of ss 34–38 of the 1987 Act, that is less than $788.32.
Section 38A does not state that a worker’s entitlement to weekly compensation cannot exceed his or her PIAWE.
The word “determination” in s 38A of the 1987 Act is to take into account the worker’s actual earnings. However, the word “amount” where it appears for the second time does not mean the combined total of compensation and earnings. If s 38A is to be interpreted in the way submitted by the appellant, the effect would be similar to an application of s 38(7) of the 1987 Act. Therefore, so it is submitted, s 38A would have no work to do. The intention of the legislature is very clear, s 38A is a special provision for workers with highest needs. The respondent relies on the following extract from my decision in Hee No 2:
“It seems plain that the general purpose of inserting s 38A into the legislation is to ensure that workers with highest needs receive additional weekly compensation payments compared to those workers with an impairment of 30% or less. That is not to say that all workers with highest needs receive the additional compensation. Such compensation is only available to those workers who meet the conditions set out above.”[30]
[30]Hee No 2, [144].
The Senior Arbitrator properly dealt with and applied the relevant principles of statutory interpretation. The respondent submits that the Senior Arbitrator set out the relevant principles in his reasons and carefully went through and accepted my analysis of the legislation in Hee No 2.
Apart from s 38A of the 1987 Act, the scheme for the payment of weekly compensation as set out in Subdiv 2 evinces an intention that a worker is to be compensated at a rate lower than that of the worker’s PIAWE. However, s 38A provides additional weekly compensation, in circumstances, to workers with highest needs.
The fact that s 38(3A) of the 1987 Act makes special provision for a worker with high needs and that such a worker is treated more favourably is consistent with the legislature’s intention to treat workers with highest needs even more favourably by providing the additional benefits set out in s 38A of the 1987 Act.
To interpret s 38A of the 1987 Act in the way suggested by the appellant would give the section no work to do, as the worker would achieve the same result by the application of s 38(7) of the 1987 Act.
The Senior Arbitrator’s construction of s 38A of the 1987 Act is not anomalous, unlikely or unreasonable. The section is “a special provision and clearly was intended as such. The heading of the section highlights” that fact. Therefore, there is no need to depart from the literal meaning of the provision.
There is nothing in s 38A of the 1987 Act that prescribes a maximum amount payable under the section. It does not limit the amount payable to the worker to a figure equivalent to his or her PIAWE. Section 38A only prescribes a minimum amount of compensation payable to a worker with highest needs. It was easy enough for the legislature to include an upper limit had this been the intention.
The meaning of the word “amount”, where it appears in s 38A(1) of the 1987 Act for the second and third times, as submitted by the appellant to refer to a combined total of compensation and earnings, is not the literal or ordinary meaning of the words of the section.
The second reading speech and explanatory note give a meaning to s 38A of the 1987 Act that cannot be reconciled with the words of the section. The words of the section are simple and unambiguous and the meaning ascertained by reference to the extrinsic material cannot displace the clear terms of the legislation.
Even if the extrinsic material is used to construe the provision in its context and in the widest sense, “seen in its context, the section provides special benefits to workers with highest needs and that the workers who qualify for these special benefits are treated more favourably than other workers. That this is so is emphasised by the heading of the section and by its provisions.” Further, it would not have been difficult for the legislature to provide an upper limit to the amount of weekly payments of compensation payable but it did not do so.
The Senior Arbitrator did not say that he was giving a beneficial construction to the legislation. While it is important to consider the purpose of the legislation and that Subdiv 2 evinces a legislative intention to balance the needs of workers with the interests of employers and insurers, s 38A of the 1987 Act is a beneficial provision. The intended benefit is to provide a minimum amount of compensation, irrespective of any amount earned. The section takes into account the amount earned by the worker in making a “determination” of the amount of weekly payments of compensation payable. Again, it would have been easy enough for the legislature to have inserted a maximum amount of compensation payable, but it did not do so. It is clear that s 38A is intended to be a beneficial section; it is a special provision to provide additional benefits to workers with highest needs.

Appellant’s submissions in reply

The appellant submits that the function of s 38A of the 1987 Act is to ensure that a worker with highest needs receives a minimum amount of weekly compensation payments. This function is not performed by any other provision in the workers compensation legislation.
The respondent’s submission that, on the appellant’s construction, s 38A of the 1987 Act would have no work to do because of the effect of s 38(7) of the 1987 Act is not correct and without foundation. The appellant submits:
“Subsection 38(7) of the 1987 Act has a different function from that of s 38A. Section 38, which is concerned with a worker’s entitlement to weekly payments after week 130, provides that a worker is entitled to compensation after this time if:
a)      the insurer assesses the worker as having no work capacity, and that this is likely to continue indefinitely (s 38(2));
b)      the insurer assesses the worker as having work capacity and certain criteria are met (s 38(3)); or
c)      the worker is a worker with high needs who has been assessed by the insurer as having current work capacity and one criterion is met (s 38(3A)).
If the worker is assessed as having current work capacity, s 38(7) provides for the amount of weekly compensation to which that worker is entitled. Section 38A then applies to modify that amount in circumstances where:
a)    the combined amount of the worker’s compensation and earnings and any non-pecuniary benefits is less than $788.32; and
b)    the worker is a worker with highest needs.”
The respondent properly concedes that the extrinsic materials disclose an intention that a worker with highest needs is to receive a minimum amount of $788.32 per week (as adjusted). However, the respondent submits that this is not the meaning achieved by s 38A of the 1987 Act because it is a special provision. The appellant submits that the identification of s 38A as a special provision designed to treat workers with highest needs more favourably than others begs the question of the content of the special provision which is made for such workers. This more favourable treatment to workers with highest needs is “providing that such workers receive a minimum amount of weekly income, comprising compensation, earnings or deemed earnings and pecuniary benefits.” That s 38A may be a special provision does not mean that it authorises over-compensation. Therefore, the respondent’s primary submission in support of his construction of s 38A does not assist him.
The respondent’s secondary submission, that s 38A of the 1987 Act is intended to have a beneficial operation, suffers from the same defect. That the provision is beneficial does not resolve the question of what it means. The appellant submits that the legislature’s intention is to be ascertained by application of the principles of statutory construction:
“… including by considering the text of s 38A, examining its historical and legislative context, having regard to the purpose of the subdivision within which it is located, and applying the principle that is appropriate to depart from the literal meaning of a provision if that meaning is inconsistent with the legislature’s purpose and would lead to an unreasonable or improbable result.”
The respondent’s reliance on the clear terms of the legislation:
“… does not come to terms with the legislative purpose evinced in the surrounding provisions, the need to construe the provision so as to give effect to harmonious legislative goals, nor the resulting ‘absurdity which can hardly have been intended’ that a worker would be able to profit from the receipt of compensation.”

CONSIDERATION

Some Principles of Statutory Construction

In Project Blue Sky the plurality set out the following principles:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos [[1955] HCA 27; 92 CLR 390], Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
... Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.”[31]
[31]Project Blue Sky, [69]–[70] (per McHugh, Gummow, Kirby and Hayne JJ).
The significance of context was further emphasised by the High Court in Alcan where the plurality explained that:
“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.”[32]
[32]Alcan, [47] (per Hayne, Heydon, Crennan and Kiefel JJ).
The question that arises on this appeal is whether the clear unambiguous text of s 38A of the 1987 Act should be modified to give it a meaning which differs from that derived from the literal meaning of the text of the provision.
In Cooper Brookes Gibbs CJ said that departure from the literal meaning of a provision may be justified where the result of giving words their ordinary meaning would be so “irrational that the court is forced to the conclusion that the draftsman has made a mistake”. He also stated that departing from the literal meaning may sometimes be justified in cases falling short of manifest irrationality, especially where “[o]n a full view of the Act, consideration of its scheme and its machinery and the manifest purpose of it” the legislative history explains how the mistake occurred.
In Minister for Immigration and Citizenship v SZJGV,[33] French CJ and Bell J quoted, with approval, the following passage from Maxwell on the Interpretation of Statutes, 12th ed, (1969), p 228:
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.”[34] (emphasis added)
[33][2009] HCA 40; 238 CLR 642 (SZJGV).
[34]SZJGV, [9] citing Maxwell on the Interpretation of Statutes, 12th ed, (1969), p 228.
In Leys their Honours Redlich and Tate JJA, T Forrest AJA held:
“The question should rather be answered by reference to the three conditions set out by Lord Diplock together with the additional requirement that the modified construction is reasonably open. That is to say, it must be possible to ‘read in’ or imply the additional words into the relevant statutory provision without giving to the provision an unnatural, incongruous or unreasonable construction and the provision as modified must produce a construction that is in conformity with the statutory scheme.”[35]
[35]Leys, [109].
The reference to the three conditions set out by Lord Diplock is a reference to Lord Diplock’s speech in Wentworth Securities Ltd v Jones.[36] Those three conditions may be paraphrased as follows. First, the court must know the mischief with which the Act is dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
[36][1980] AC 74 (Wentworth Securities).

The approach adopted in Leys, namely that the modified construction is available if it is reasonably open having regard to the statutory scheme, was criticised by the High Court in Taylor v The Owners – Strata Plan No 11564.[37]
[37][2014] HCA 9; 253 CLR 531 (Taylor).
In Taylor, the majority held:
“Consistently with this Court's rejection of the adoption of rigid rules in statutory construction [Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 401 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ; [1996] HCA 36], it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia[(2007) 232 CLR 138; HCA 47], the question of whether a construction ‘reads up’ a provision, giving it an extended operation, or ‘reads down’ a provision, confining its operation, may be moot [Leys at 129–130 [105]–[107]].
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision [Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; [1984] HCA 48; SZJGV651–652 [9] per French CJ and Bell J]. It is answered against a construction that fills ‘gaps disclosed in legislation’ [Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J; [1972] HCA 27] or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’ [Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115].
Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution (a firm) [[2000] 1 WLR 586 at 592 per Lord Nicholls of Birkenhead; [2000] 2 All ER 109 at 115. The reformulation was of the third condition: the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted.]) accord with the statements of principle in Cooper Brookes [(1981) 147 CLR 297] and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ [Leys at 126 [96]] because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.’ [Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113; [1997] HCA 53. See also IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J; [1997] HCA 30]
Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. [Wentworth Securities Ltd v Jones[1980] AC 74 at 105–106.] In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be ‘too far-reaching’. [Inco Europe Ltd v First Choice Distribution(a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115] In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution. [Plaintiff S157/2002 v The Commonwealth(2003) 211 CLR 476 at 512–513 [102] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2; Zheng v Cai (2009) 239 CLR 446 at 455–456 [28] per French CJ, Gummow, Crennan, Kiefel and Bell JJ; [2009] HCA 52]”[38]
[38]Taylor, [37]–[40] (per French CJ, Crennan and Bell JJ).

The application of the principles

The approach to statutory construction “begins, as it ends, with the statutory text.”[39] I accept the appellant’s submission that the modern approach to statutory construction insists that context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.[40] I also accept, the appellant’s submission, that a court will prefer an interpretation which avoids consequences that are “anomalous, unlikely or unreasonable”. However, to depart from the plain words of s 38A of the 1987 Act, I must be satisfied, among other things, that any modified meaning is consistent with the statutory scheme and consistent with the language in fact used by the legislature.
[39] SZTAL, [37] (per Gageler J).
[40]CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384.

The appellant concedes “for the purposes of the argument” that the literal or ordinary meaning of the words in s 38A of the 1987 Act mean that the amount of weekly compensation payable to a worker, who qualifies for compensation under that provision, is to be treated as $788.32. That is, without having regard to any income earned or capable of being earned, by the worker. However, the appellant submits that that interpretation allows a worker to receive an income in excess of their PIAWE. Such an interpretation is contrary to the description of payment as “compensation” and does not reflect the intention of the legislature, as expressed in the text of the legislation and in the extrinsic materials.
The appellant submits that the term “amount” where it appears for the second and third time in s 38A of the 1987 Act means “the amount of a worker’s combined weekly compensation payments, non-pecuniary benefits and earnings or deemed earnings”. If the appellant’s submissions are to be accepted, s 38A(1) would be construed as if it contained the additional words in bold below:
“If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this subdivision results in an amount that is less than $788.32, the amount [of a worker’s combined weekly compensation payments, non-pecuniary benefits and earnings or deemed earnings] is to be treated as $788.32.”
Contrary to the appellant’s submissions, there is a general presumption that where a word is used consistently in legislation it should be given the same meaning consistently. In Craig Williamson Pty Ltd V Barrocliff[41] 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.”[42]
[41] [1915] VLR 450 (Barrocliff).
[42] DC Pearce and RS Geddes, Statutory Interpretation in Australia (Butterworths, 8th ed, 2014), at 4.6 citing Barrocliff, 452.
This presumption is even more powerful when the words are used in the same section. As the Court in McMillan v Pryce (1997) 115 NTR 19 said, an expression used more than once in the same section should be read as encompassing the same “sphere of operation”.[43]
[43] DC Pearce and RS Geddes, Statutory Interpretation in Australia (Butterworths, 8th ed, 2014), at 4.6 citing McMillan v Pryce (1997) 115 NTR 19, 23.
Moreover, to depart from the unambiguous language used by the legislation, more is required than a construction which is merely open.[44] As the High Court confirmed in Taylor, Lord Diplock’s three conditions identified in Wentworth Securities must be met. Even if those three conditions are met, a court may be inhibited from interpreting the provision in accordance with what it considers was the underlying intention of the legislature if the alteration to the language of the provision is “too far reaching”.[45] This fourth qualification has been considered by some courts as necessary to fulfil before a court is justified in reading words into a provision. This qualification is taken from the statement of principles by Dawson J (dissenting in the result) in Mills v Meeking,[46] where his Honour said that the modification “must be consistent with the wording otherwise adopted by the draftsman.”[47]
[44] Taylor, [37]–[40] (per French CJ, Crennan and Bell JJ).
[45] Taylor, [40] (per French CJ, Crennan and Bell JJ).
[46] (1990) 169 CLR 214 (Mills v Meeking).
[47] Mills v Meeking, 235 (per Dawson J); referred to in Taylor, [25] (per French CJ, Crennan and Bell JJ).
The Workers Compensation Legislation Amendment Act 2012 introduced various amendments to the workers compensation scheme. It introduced additional benefits for “seriously injured workers”, those workers with a whole person impairment level of over 30%. This represented a “fundamental shift towards properly meeting the needs of the most seriously injured workers in the scheme”,[48] which had not been met previously.
[48] Second reading speech, introducing the Workers Compensation Legislation Amendment Bill 2012 (2012 amending Act second reading speech).
In 2015, the Workers Compensation Amendment Act 2015 (the 2015 Amending Act) introduced a series of amendments providing additional benefits. The Minister stated in the second reading speech to the Workers Compensation Amendment Bill 2015 that:
“The benefit enhancements being introduced by the Government are focused on three simple objectives: supporting injured workers to recover and return to work, providing proper assistance to workers with the highest needs and making sure that any changes to benefits will not compromise the financial sustainability of the scheme.”[49]
[49]2012 amending Act second reading speech.
The 2015 Amending Act introduced new terminology for seriously injured workers. Seriously injured workers who have more than 30% whole person impairment were defined as “workers with highest needs” and injured workers who have more than 20% whole person impairment were defined as “workers with high needs”. It introduced benefit enhancements to workers with high needs and workers with highest needs, who were entitled to compensation beyond the second entitlement period.[50] It also introduced s 38A of the 1987 Act, a special provision which provides additional weekly compensation, in certain circumstances to workers with highest needs.
[50] The 1987 Act, s 38(3A).
Section 38A was added to Subdiv 2 (“Entitlement to weekly compensation”) of Div 2 of Pt 3 of the 1987 Act. It is one of the provisions that determines the amount of weekly payments payable to a worker, along with ss 34–39, which considers a worker’s average weekly earnings, a worker’s current work capacity, and the period for which compensation is to be paid.
As I have said, the appellant concedes, the literal meaning of the words of s 38A of the 1987 Act are plain. It means that the amount of weekly compensation payments is to be treated as $788.32, without having regard to any income earned or capable of being earned, by the worker. However, and this is not disputed, the Minister’s second reading speech to the Workers Compensation Amendment Bill 2015, cannot be reconciled with the plain words the legislature enacted.
The Minister stated in the second reading speech to the Workers Compensation Amendment Bill 2015 that, the “bill will ensure the workers with the highest needs will receive a minimum amount of $788 each week, which will comprise the benefit paid for by their insurer and any post-injury earnings of the worker”. The Minister added:
“This will assist those workers with over 30 per cent permanent impairment who were on very low pre-injury average weekly earnings and who may receive weekly payments for many years.”[51]
Similarly, and it is accepted, the Explanatory Note to the Workers Compensation Amendment Bill 2015 stated that the amount of $788.32 was “a combined total of compensation and earnings”.
[51] Second reading speech, introducing the Workers Compensation Amendment Bill 2015.
However, the text of s 38A of the 1987 Act, as enacted, makes no reference either expressly or impliedly to a worker’s earnings. It is that omission that the appellant seeks to remedy by reading in the words referred to at [96] above, into s 38A.
It is well settled that the intention of Ministers in second reading speeches or explanatory memorandum cannot displace the clear meaning of the legislation actually passed by the legislature. In Re Boulton; Ex parte Bean[52] the High Court said:
“The words of a Minister must not be substituted for the text of the law. ... The function of the Court is to give effect to the will of Parliament as expressed in the law.”[53]
[52] [1987] HCA 12; 162 CLR 514 (Re Boulton).
[53] Re Boulton, [4] (per Mason CJ Wilson and Dawson JJ).
In Harrison v Melhem,[54] the Court of Appeal stated:
“Statements in Parliament, even by ministers during the Second Reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another.”[55]
[54] Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 (Melhem).
[55] Melhem, 399 (per Mason P (per Beazley and Giles JJA agreeing, 403)) applied in State of New South Wales v Chapman-Davis [2016] NSWCA 237, [83] (per Gleeson JA (McColl JA agreeing)).
Also, in Newcastle City Council v GIO General Ltd:[56]
“…as I pointed out in Kingston v Keprose Pty Ltd, in applying a purposive construction, ‘the function of the court remains one of construction and not legislation.’ When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.”[57] (citation omitted)
[56] [1997] HCA 53; 191 CLR 85 (Newcastle City Council).
[57] Newcastle City Council, 109 (per McHugh J).
More recently, the High Court has cautioned against the danger of concentrating on legislative intention to override the ordinary meaning of a statutory text.[58] As Sackville AJA said: “[t]he High Court has warned against what it regards as courts identifying desirable policy and imputing that policy to the legislation (as distinct from deriving the purpose from the text and context of the legislation).”[59]
[58] Alcan, [11] (per French CJ) and [51] (per Hayne, Heydon, Crennan and Kiefel JJ); Carr v Western Australia [2007] HCA 47; 232 CLR 138, [6] (per Gleeson CJ).
[59] Chapman-Davis, [104] (per Sackville AJA citing Deal v Kodakkathanath [2016] HCA 31, [37] (per French CJ, Kiefel, Bell and Nettle JJ)).
Turning to the first of Lord Diplock’s three conditions, it is relatively easy to identify the mischief the statute was intended to address. That is, to provide a minimum amount of compensation for workers with highest needs. That was the mischief with which the 2015 Amending Act was dealing by introducing s 38A of the 1987 Act.
As to the second of Lord Diplock’s conditions, if the statutory language in s 38A of the 1987 Act was adopted inadvertently or by mistake the provision may be open to modification to correct that error. Legislative inadvertence has been described to consist of either of the following two things:
“The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case it may be possible for the court, in the process of construction, to remedy the omission.”[60]
[60] Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379, [61] (per Beazley JA) citing Mahoney JA (per McHugh and Clarke JJA agreeing) in Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275, 283.
The appellant submits that the eventuality overlooked by the legislature is that on the plain reading of s 38A of the 1987 Act a worker with highest needs would be able to profit from the receipt of compensation, instead of enabling them to receive a minimum amount of weekly compensation payments, being a combined total of compensation and earnings. That is because it would, unlike the remaining provisions in the division, result in the payment of compensation which, when added to actual earnings, non-pecuniary benefits or deemed earnings, would be in excess of the worker’s PIAWE. Without the additional words for which the appellant contends, the appellant submits that the outcome of applying s 38A would be “anomalous, unlikely or unreasonable”.
It may be arguable that the legislature overlooked an eventuality, which must be dealt with if the purpose of s 38A of the 1987 Act, as submitted by the appellant, is to be achieved. However, there is considerable doubt as to what would have been done if the legislature had been drawn to the eventuality at the time of drafting. There is also doubt as to whether the legislature would have added the words contended for by the appellant.
I do not accept the appellant’s submissions that there is contextual support for the construction for which it contends. Broadly speaking, it may be accepted that ss 36–38 quantify the compensation payable taking into account a proportion of the worker’s PIAWE less the amount of the worker’s earnings or ability to earn. However, s 38A of the 1987 Act operates differently, in that, the worker’s PIAWE, calculated “in accordance with this Subdivision” is only relevant to determine if the provision is triggered. Once it is triggered, contrary to the appellant’s submissions, the worker’s PIAWE becomes irrelevant to the quantification of the compensation payable.
As I noted in Hee No 2, the additional special benefits provided by s 38A of the 1987 Act are only payable if certain conditions are satisfied. Firstly, there must be a “determination” made of the amount of weekly payments of compensation payable in accordance with Subdiv 2. Secondly, there must be an “amount of weekly payments of compensation payable”. Thirdly, the amount of compensation must be an amount that is less than $788.32 (as adjusted). It is not disputed that those conditions have been met in the circumstances of this case, nor is it disputed that there is a requirement to satisfy those conditions to enliven an entitlement under s 38A. As discussed above, what is disputed is the quantification of Mr White’s entitlement under s 38A.
There is nothing in s 38A of the 1987 Act to indicate that the special benefits available are to be capped in the manner the appellant contends. The plain words of the section are to the contrary.
It does not follow contextually that, because some of the benefits available in the provisions of Subdiv 2 limit the compensation to a proportion of a worker’s PIAWE that all of its provisions must be so limited. That is particularly so when one considers that s 38A of the 1987 Act is a special provision clearly intended to provide additional benefits to workers of highest needs.
Further, I do not accept the appellant’s submission that the construction found by the Senior Arbitrator gives a strained interpretation of the meaning of “compensation” by adding an additional “bonus” for a worker’s demonstrated loss. “Compensation” under s 4 of the 1998 Act is defined to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.” Clearly any compensation payable under s 38A of the 1987 Act, however it is quantified, is a monetary benefit and meets the statutory description of “compensation”.
Further, the suggested modification to the provision would not avoid the anomalies for which the appellant contends. Even on the construction favoured by the appellant, entitlements to compensation under s 38A of the 1987 Act may result in compensation in excess of the worker’s PIAWE.
Take for example, the circumstances of a worker with highest needs with a PIAWE of $600 per week. Applying the formula in s 38(7) of the 1987 Act, 80% of the worker’s PIAWE would be $480. Where such a worker, post injury, is earning or is assessed as having an ability to earn $400 per week, the assessment of the entitlement in accordance with Subdiv 2, leaving aside s 38A, would be $80 per week. Based on the construction for which the appellant contends, the worker would be entitled to $388.32 per week in weekly compensation, so that the combined total of his or her earnings plus compensation amounted to $788.32 (as adjusted). However, as may be seen by this example, the combined total of weekly payments and compensation exceeds the worker’s PIAWE of $600. In other words, the worker in this scenario would receive compensation in excess of his or her PIAWE of $188.32 per week.
In the same example, if the construction found by the Senior Arbitrator were applied, the worker having demonstrated an entitlement to compensation of less than $788.32 per week would be entitled to compensation in the sum of $788.32 per week in addition to his or her earnings or his or her ability to earn in suitable employment. Therefore, the worker in this scenario would be entitled to $788.32 plus earnings of $400, being $588.32 in excess of his or her PIAWE.
In both circumstances, the compensation payable to the worker would exceed the worker’s PIAWE, the only difference being the quantification of the excess amount. Even if I accept the construction for which the appellant contends, which I do not, it would not overcome the eventuality the appellant submits must be dealt with if the provision is to achieve its purpose nor does it overcome the anomalies identified. Whilst undoubtedly the outcomes presented above are anomalous, I am not satisfied that the legislature failed to provide in s 38A of the 1987 Act express words appropriate to give effect to the provision.
There are some cases where the result of giving words in a provision their ordinary meaning “may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case”.[61] However, this is not one of those cases.
[61]Cooper Brookes, [6] (per Gibbs CJ).
The language of s 38A of the 1987 Act is clear and unambiguous, the express words are capable of only one construction. It is intended to provide a minimum amount of compensation, if the terms of s 38A(1) are met. I am not satisfied that any other provision casts doubt on that construction.
I make the following further findings. Firstly, if the construction for which the appellant contends is accepted, s 38A of the 1987 Act no longer provides a minimum amount of compensation rather it would establish a cap on the compensation payable. Secondly, it would also give the term “amount” in s 38A different meanings, depending on the location of that word in the section. The term “amount” where it appears for the first time in s 38A means the quantum of “weekly payments of compensation payable”, as determined. While, the term “amount” where it appears for the second and third time in s 38A, on the appellant’s construction, would mean the quantum “of a worker’s combined weekly compensation payments, non-pecuniary benefits and earnings or deemed earnings”. The appellant has not demonstrated strong reasons why the rebuttable presumption in Barrocliff should be displaced, to find that the word “amount” where it appears in s 38A for the first time should have a different meaning to where the term appears for the second and particularly the third time.[62] Thirdly, even if s 38A were left uncorrected the general purpose of the provision, to provide additional compensation to workers with highest needs, would not be defeated.[63]
[62] Barrocliff, 452 (per Hodges J).
[63]Taylor, [38] (per French CJ, Crennan and Bell JJ).
It follows that the provision must be given its ordinary and grammatical meaning, even if it results in an outcome that may be anomalous or result in a “bonus”, as the appellant submits. It follows that the second of Lord Diplock’s conditions is not met.
Turning to the third of Lord Diplock’s conditions, for the reasons stated above, it is not possible to state with certainty what words the legislature would have included to overcome the alleged omission in s 38A of the 1987 Act if its attention had been drawn to it before its enactment. For the reasons stated, I cannot be satisfied that had this deficiency been identified the legislature would have included the words “of a worker’s combined weekly compensation payments, non-pecuniary benefits and earnings or deemed earnings” after the second or third reference to “amount” in s 38A.

Even if I was satisfied that Lord Diplock’s conditions were met, I would be disinclined to accept the appellant’s preferred construction as being “too far-reaching”.[64] The construction for which the appellant contends would give s 38A a meaning which is too far at odds with the words the legislature has used. It would give s 38A a meaning that is vastly different to the provision enacted. In some circumstances, it would substantially diminish a worker’s entitlements to weekly compensation for which the legislation has unambiguously provided. To give s 38A such a construction would, in my view, stray from the task of statutory construction into the realm of “judicial legislation”.[65]
[64]Taylor, [40] (per French CJ, Crennan and Bell JJ).
[65]Taylor, [40]] (per French CJ, Crennan and Bell JJ).
For these reasons, the appeal must fail.
However, I make the following observations. The appellant concedes that workers compensation legislation is beneficial in nature. The Senior Arbitrator did not construe the provision broadly because of its beneficial nature, he construed it applying accepted principles of statutory construction.
That said, it is appropriate to adopt a liberal approach to the interpretation of beneficial legislation, particularly in the construction of amendments that extend benefits conferred by beneficial legislation.[66] I note s 38A of the 1987 Act is such a provision. In any event, these are observations and my reasons are not based on a beneficial construction approach.
[66] Tracy v Repatriation Commission [2000] FCA 779; 101 FCR 149, [13]; Repatriation Commission v Hawkins [1993] FCA 662; 117 ALR 225, 231.

DECISION

The Senior Arbitrator’s Certificate of Determination dated 19 June 2018 is confirmed.

Judge Keating

President

8 November 2018