| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wake v State Emergency Services [2022] NSWPIC 50 |
| APPLICANT: | Lynda Jane Wake |
| RESPONDENT: | State Emergency Services |
| MEMBER: | 8 February 2022 |
| DATE OF DECISION: | Michael Wright |
| CATCHWORDS: | WORKERS COMPENSATION - Work capacity dispute; calculation of pre-injury average weekly earnings (PIAWE); applicant took period of 6 months long service leave half pay within the 52 week PIAWE relevant earnings period; Schedule 3, clause 2 of the Workers Compensation Act 1987 and clause 8C of the Workers compensation regulation considered; statutory interpretation; consideration of Cain v Tamworth Aboriginal Medical Service; beneficial legislation consideration; Held - period of long service leave half pay excluded from relevant earnings period; award for the applicant. |
| DETERMINATIONS MADE: | 1. The relevant period for the calculation of pre-injury average weekly earnings (PIAWE) was from 9 November 2019 to 8 November 2020, excluding the period from 15 November 2019 to 14 May 2020. 2. PIAWE is $2061.02. 3. Respondent to pay the applicant weekly payments of compensation pursuant to section 36(1) of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $1957.97 per week for the period 9 November 2020 to 9 February 2021, and pursuant to section 37(1) of the 1987 Act, from 10 February 2021 and continuing at the rate of $1648.82 per week, and as indexed from time to time, with credit to the respondent for all payments of weekly compensation made to date that have not already been reimbursed to the employer. |
STATEMENT OF REASONS
BACKGROUND
This is an application by Ms Lynda Wake (the applicant) for weekly compensation as a result of psychological injury sustained in the course of her employment with State Emergency Services (the respondent).
The respondent issued a section 78 notice dated 5 February 2021 relating to the calculation of pre-injury average weekly earnings (PIAWE) and also section 287A review notices dated 1 June 2021, 24 June 2021 and 3 August 2021, in which the earlier notices were confirmed. In the section 287 a review notice dated 3 August 2021, the respondent indicated that the extended leave at half pay for the period 15 November 2019 to 14 May 2020 is to be included in the relevant period for the calculation of PIAWE under Schedule 3 Part 3(a) and it does not fall within clauses 8A to 8E of the Workers Compensation Regulation 2016 (the 2016 Regulation). The respondent was of the view that only periods of unpaid leave or other change in earnings circumstance in employment may allow for an exclusion from the relevant period and extended leave at half pay did not come within such an exclusion.
PROCEDURE BEFORE THE COMMISSION
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 have 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…
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- AGLC
- Wake v State Emergency Services [2022] NSWPIC 50
- Case
- [2022] NSWPIC 50
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether a period of long service leave half pay, where the worker did not perform any work, should be excluded from the relevant earnings period for the purposes of calculating PIAWE. The applicant argued that the period of half pay should be excluded as it did not constitute work performed, while the respondent contended that the whole 52-week period should be utilised, unless adjusted by the regulations. The court considered the statutory framework, including Schedule 3, clause 2 of the 1987 Act and clause 8C of the Workers Compensation Regulation 2016, as well as relevant case law, particularly Cain v Tamworth Aboriginal Medical Service.
The court held that the period of long service leave half pay should be excluded from the relevant earnings period. The court found that clause 2(2) of Schedule 3 to the 1987 Act sets the relevant earning period with reference to “earnings”, irrespective of whether work was performed. Clause 2(3) provides for an adjustment of the relevant earning period in cases of a change in earnings, a concept carried forward in regulation 8C. The court rejected the respondent’s argument that clause 6 of Schedule 3 was relevant only to defining "earnings" and not to the relevant earning period, finding that this interpretation was inconsistent with the structure of clause 2. Consequently, the period of half pay, where no work was performed, was excluded from the relevant earnings period for calculating PIAWE.
The court ordered that the period of long service leave half pay should be excluded from the relevant earnings period for the calculation of PIAWE, leading to an award in favour of the applicant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Regulation 8A of the 2016 Regulation relevantly provides:“8A Operation of Division(1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker.…” Regulation 8C of the 2016 Regulation (regulation 8C) provides for an adjustment for a financially material changed earnings. It provides as follows:“8C Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.” The parties agreed that the date of injury is deemed by section 15 of the 1987 Act to have been 9 November 2020. There was no dispute that the applicant was on a period of long service leave, described by both parties as being on half pay, for the period 15 November 2019 to 14 May 2020. It was also not disputed that the period that the applicant was receiving half pay while on long service leave was the result of a negotiated long service leave entitlement. The applicant in written submissions in chief submitted that while the long service leave taken by the applicant could be characterised as a relevant “other change in earning circumstances in the employment”, the applicant did not perform any work in that period of long service leave. It was submitted that the operation of clause 6, Schedule 3 would exclude the period prior to 11 May 2020, or in the alternative exclude the period when work was not performed. The respondent submitted that clause 2 does not operate as submitted by the applicant as it contemplates that in determining the relevant earning period, for the purposes of the PIAWE calculation, the whole of the period of 52 weeks prior to injury is to be utilised, except as adjusted by the regulations. The respondent also submitted that clause 6 is used only for the purposes of defining “earnings” in order to enliven the operation of clause 2 but is not relevant to the calculation of the “relevant earning period”. I do not accept the submission that clause 6 is relevant to “earnings” but not to “relevant earning period”, as it is not supported by the structure of clause 2. Clause 2(1) sets out the meaning of PIAWE. Clause 2(2) sets the “relevant earning period” with reference to “earnings”, that is no regard being given to earnings “for work performed” before or after the period of 52 weeks ending immediately before the date of injury. Clause 2(3) provides for an adjustment of the relevant earning period with reference to a change of earnings. The relevant earning period, contingent upon a consideration of earnings, is continued into regulation 8C. The context of regulation 8C is discussed below.