White v FAI General Insurance Co Ltd
[1991] TASSC 55
•10 May 1991
Serial No 29/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: White v FAI General Insurance Co Ltd [1991] TASSC 55; A29/1991
PARTIES: WHITE, Wayne David
v
FAI GENERAL INSURANCE CO LTD
TOMLINSON STEEL PTY LTD
t/as CLYDE-RILEY DODDS
FILE NO/S: LCA 121/1990
DELIVERED ON: 10 May 1991
JUDGMENT OF: Zeeman J
Judgment Number: A29/1991
Number of paragraphs: 40
Serial No 29/1991
List "A"
File No LCA 121/1990
WAYNE DAVID WHITE v FAI GENERAL INSURANCE CO LTD
and TOMLINSON STEEL PTY LTD T/AS CLYDE-RILEY DODDS
REASONS FOR JUDGMENT ZEEMAN J
10 May 1991
This is an appeal from an order dismissing an application made by the first respondent on behalf of the second respondent pursuant to s88 of the Workers Compensation Act 1988 ("the Act") to review a weekly payment being made to the appellant. Whilst the papers do not contain an actual order of dismissal it is common ground that the learned Commissioner did dismiss the application and I proceed upon that basis.
The application, which was dated 31 August 1990, was in the following terms:
"APPLICATION TO COMMISSIONER
To The Registrar,
Court of Requests,
Workers Compensation Division.
Hobart.
I, Douglas Ron Smith of FAI Insurance Group on behalf of Clyde–Riley Dodds of 125 Collins Street Hobart hereby apply to the Workers Compensation Commissioner to hear and determine the following:–+ To determine the correct rate of compensation. Worker only employed 13 days prior to injury.
This application is made pursuant to section 88 of the Workers Compensation Act 1988."
It will be observed that the form of application makes no reference to the identity of the "Worker". However the learned Commissioner and the parties proceeded upon the basis that the application related to the appellant. Presumably he was served with the application. Any irregularities in this regard were procedural in nature and cured by the way in which the hearing of the application proceeded.
Whilst the application in its terms did not request a review, it was made under s88 of the Act, which permits the making of an application for review of a weekly payment and permits no other form of application. It was treated by the learned Commissioner as an application for review of the weekly payment being made to the appellant. All parties agreed that the application ought to be treated as an application for such a review. I proceed upon the basis that the jurisdiction conferred by s88 was validly invoked.
The application came before the Commissioner on 19 September 1990 when each of the appellant and the respondents was separately represented by lay advocates. Due to a malfunctioning in the recording equipment used by the learned Commissioner, I have only part of the transcript of the proceedings before his Honour on that day. However, that portion of the transcript which is available to me gives sufficient indication of the nature of what it was that the parties were asking the Commissioner to determine. The appellant was alleging that his employment with the second respondent was pursuant to a contract which required him to work 56 hours each week. He claimed that it ought to follow from that that the ordinary time rate of pay of the appellant for the purposes of s69(1)(a)(ii) of the Act was the amount payable to him for such a 56 hour week. On the other hand, the respondents contended that the appellant was entitled to be paid weekly compensation at the rate applicable to a 38 hour week. It was common ground before the learned Commissioner that the second respondent had initially commenced making a weekly payment to the appellant by reference to a 56 hour week, but that thereafter, as a result of the intervention of the first respondent, the weekly payment was reduced to a payment intended to be referable to a 38 hour week. Counsel for the respondents did not seek to argue that such a reduction in the weekly payment was lawful. Such a unilateral action on the part of an employer or its insurer may well have been unlawful in that it was in breach of s86(1) of the Act.
Whilst it does not appear from the transcript, it appears that on 19 September 1990 the learned Commissioner requested the Secretary to carry out an investigation into matters relating to the reference. The terms of that request are unknown. The material ultimately furnished to the learned Commissioner as a result of his request contains much material which was wholly irrelevant to the issues raised before his Honour. Where a matter is referred to the Workers Compensation Commissioner the party making the reference is seeking a judicial determination. There is no objection to the Commissioner utilizing the resources of the Secretary to gather material relevant to an application and to have that placed before him, reserving to the parties an adequate opportunity to test, challenge and controvert such material. However any such request ought to be carefully framed so as to indicate precisely what material is sought. Any request to the Secretary which amounts to a general invitation to go on a fishing expedition, giving no indication as to the issues of fact as to which enquiries are to be made, is to be deprecated. If such a request is made the Secretary ought to report to the Commissioner who in turn ought to disclose the report to the parties. It is quite wrong for the Secretary or his officers to investigate and then, without first reporting to the Commissioner, to write to a party in terms suggestive of the Secretary or such officer having determined the matter referred to the Commissioner. Yet this is what appears to have occurred in this case, in the form of a letter from the Chief Industrial Officer to which I am about to refer.
The application came back before the learned Commissioner on 5 November 1990 when he had before him certain material from the Secretary, consisting of a copy of a letter from the Chief Industrial Officer to the first respondent, statements taken from fellow employees of the appellant Steven James Sawford and Brian Charles Cooper, and a copy of the appellant's group certificate in respect of earnings derived from his employment with the second respondent for the year ended 30 June 1991.
It is appropriate to reproduce the letter from the Chief Industrial Officer to the first respondent. It was in the following terms:
"11 October 1990
The Manager
FAI
GPO Box 920J
HOBART 7001
Attention: Mr D Smith
Dear Sir
WORKERS COMPENSATION ACT 1988
RE: W D WHITE AND CLYDE–RILEY DODDSI refer to discussions on 9 October 1990 between Mr Smythe of this Division and your Claims Manager, Doug smith, regarding the above matter.
This matter has been investigated at the request of the Workers Compensation Commissioner during his hearing of WCA375/90.
The investigation has revealed that during Mr White's employment the hours of work were 8 hours per day for 7 days per week (56 hours) as claimed by him.
Support of this has come from two independent witnesses as well as comments made by Mr Peter Hinner during an interview at the Boyer site on 1 October 1990.
Mr Hinner informed Mr Smythe that he had the expectation that painters were to work 7 days per week for the duration of the painting job.
Mr Hinner had informed potential painting employees thus, 'I told them that, unless they were prepared at present to work 7 days per week, until further notice, that they were no good to me'.
If the potential painters agreed to these conditions then they were hired – subject to other criteria being met.
Time and wages records have confirmed these hours worked.
The part 'B' claim form also refers to the average days per week being 7 and the average hours worker (sic) per week of 56 hours.
Mr White should be paid in accordance with section 69 of the Act.
The weekly rate for the period immediately preceding Mr white's accident would be calculated thus:–
Monday to Friday = 5 days @ 8 hours 40
Saturday = 8 hours– 2 @ T1.5 = 3}
6 @ T2 = 12} 15
Sunday = 8 hours @ T2 16
71 hours @ 11.56384 = 819.12
Const Allowance 56 hours @ $1.45hour = 81.20
Travel Allowance 7 day @ $8.30day = 58.10
$958.42
I trust this will resolve the matter."
The learned Commissioner commenced the proceedings on 5 November 1990 with the following remarks:
"Well you've read the reports supplied by the DLI It seems straightforward enough to me, what do you say about it?"
It appears that on that occasion there appeared before the learned Commissioner the representatives of the parties as well as Mr Smythe, apparently an industrial officer. Presumably he was the same Mr Smythe as the Mr Smythe who appears to have taken the witness statements and the person named at the top of the Chief Industrial Officer's letter. I infer that on that occasion the material from the Chief Industrial Officer was treated as having some evidentiary value. No other evidence was taken by the learned Commissioner, at least not in any formal sense. The transcript records a rather confused procedure constituted by inconclusive discussions between the various persons present including the learned Commissioner.
The first respondent's representative made it plain to the learned Commissioner that the first respondent disputed the conclusions reached by the Chief Industrial Officer, but at the same time he was unable to say what in the first respondent's submission was the proper rate of weekly compensation. The appellant's representative asserted that the appellant was employed to work 56 hours per week over a seven day week and was therefore entitled to be paid on that basis as calculated by the Chief Industrial Officer in the sum of $958.42 per week. There was some discussion between the learned Commissioner and the second respondent's representative as to alternative methods of calculating the rate of compensation, but, when it became plain that those submissions were directed to s69(1)(a)(i) (which it was, and is, common ground, has no application), the second respondent abandoned its submissions. The second respondent's representative and Mr Smythe agreed that the application of the provisions of s69(10) could not result in a weekly payment of $958.42 being reduced. The appellant's representative again asserted that it was a condition of the appellant's employment that he work 56 hours per week over seven days. The second respondent's representative did not then appear to dispute that, although he had disputed it at the earlier hearing on 19 September 1990.
Section 49(1) gives considerable latitude to the Commissioner in determining proceedings before him. He is not bound by the rules of evidence. He may inform himself on any matter in such manner as he thinks fit. He is required to conduct the proceedings with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matters to be resolved permit. However, those provisions provide no warrant for not adhering to basic rules of procedural fairness. Whether it was a term of the appellant's employment that he work each week for 56 hours, eight of which were to be worked on each day of the week, was a fundamental question of fact. The course of the proceedings before the learned Commissioner must have made it plain to him that that proposition might well be in issue. The following occurred before the learned Commissioner on 19 September 1990:
"MRS WALKER: [Appellant's representative.] Mr White actually signed a contract which was a 56 hour week I gather, and those hours were 8 to 4.30 seven days a week. I don't think there was any time in that. You disagree, sorry?
MR HINNER: [Second respondent's representative.] Most definitely, there was no contract signed. There was indication given that since painting was behind schedule there will be a certain amount of overtime work. Now we have ceased working overtime and we've ceased working painting over the last, say, 3 weeks, and there is no one in this classification employed at the moment."
Later the second respondent appeared to somewhat alter its stance as is indicated by the following excerpt from the transcript:
"MRS WALKER: Yes, Yes. The dispute – I think the understanding that Mr White had when he commenced work that he would work a 56 hour week which is quite normal in the contracting business.
COMMISSIONER: Yes. I mean you agree that he – there was an arrangement for a 56 hour week?
MR HINNER: Yes, Mr Commissioner, quite definitely but at limited space as the project required it, so most probably two months, or whatever, or three months for – I wouldn't even say that long after Mr White was employed and then the hours were reduced. Number 1, because you can't paint in wet weather anyway and you can't paint in cold weather, so, you know, I mean – no, I mean I like to make my point. Now if Wayne has any documentation where he can say, 'Right, there's a copy of what I signed', I mean I'm quite prepared to submit employment record. Now there is nothing in my company what will specify a certain number of hours worker per week. No company does it."
Nevertheless, that passage still appears to place in dispute the appellant's basic proposition that his contract of employment was to the effect that he would work a 56 hour week.
The Commissioner had other conflicting material before him as to the precise terms of employment in so far as the hours of work were concerned, contained in the material put before him by the Secretary. The Chief Industrial Officer's reference to Mr Hinner informing potential employees that "unless they were prepared at present to work seven days per week, until further notice, that they were no good to me" falls far short of establishing a contractual term whereby it was agreed that the hours of work would be 56 hours per week. It may amount to no more than a requirement that potential employees acknowledge a willingness to work in excess of normal hours if and when so requested. That would be consistent with the assertion made by Mr Hinner at the first hearing. The statement made by Mr Sawford contains the following:
"Peter Hinner informed the painters in the lunchroom that they were required to work 8 hrs/day for 7 days/wk as per your contract you signed when you started."
The statement of Mr Cooper, who apparently was another painter employed by the second respondent on the same project as that on which the appellant was employed, contained the following passages:
"When I started work, Hinner said that there were 3 forms to sign. One was for a 56 hr wk, one taxation, one emplee (sic) details.
.....
He said that the painters signed a 56 hour contract for 7 days/wk and they would be working Tuesday and that you all work 7 days/wk except for public holidays."
It might well have been prudent to endeavour to have before the learned Commissioner copies of the documents therein referred to, if they existed. It must be borne in mind that on 19 September 1990 Mr Hinner, in somewhat emphatic terms, said that no form of contract was signed.
There having occurred before the Commissioner the discussions to which I have referred, he thereupon reserved his decision. Prior to handing down his decision, he called the parties back to appear before him on 16 November 1990, apparently at short notice. It is doubtful whether the second respondent was then represented. It ought never to be assumed that the interests of an employee and his licensed insurer are co–extensive. The learned Commissioner commenced the proceedings on that day with the following:
"I called the parties together because I had a few queries. I'll just take the appearances again. Mr Dodge is present and Mrs Walker you're appearing for him – Mr White rather. Mr Dodge is not present I take it. Mr Smythe is present. Well look, this is the tentative conclusion I've come to, that is that the ordinary time rate of pay in this case was really calculated against the background of the Award. It's not really – it seems to be an entirely new contract – well I suppose it was a new contract entered into, but it seems to me that the calculation of the 56 hour week is calculated on the background of the Award, the ordinary time rate of pay as provided for in the Award, overtime, time and a half, double time for Saturday and the double time provision on Sunday, and of course the allowances provided for in the Award, it's all against the background of the Award. I thought I'd give you Mrs Walker the opportunity to comment about this. The other thing is that the calculation made by Mr Smythe has acted on the presupposition. I think that the ordinary time rate of pay includes the overtime and allowances, and there is a figure calculated. I thought that I might calculate the figure on the alternative basis – does the Award provide for a 38 hour week or a 40 hour week."
It appears that the learned Commissioner was then told by Mr Smythe that the relevant award provided that time worked in a week in excess of 38 hours was to be paid at penalty rates. I observe that that appears to be inconsistent with the calculations provided by the Chief Industrial Officer which appear to have proceeded upon the basis that the relevant number of hours was 40. The appellant's representative made some endeavour to ascertain what award was considered to be relevant. Her enquiry does not appear to have been answered. The transcript makes it plain that the learned Commissioner had not seen the award and was unaware as to what was the relevant award, saying, "I take it it's the Painters Award – there must be a Painters Award." The learned Commissioner's observations were no doubt prompted by a tentative conclusion on his part that "the ordinary time rate of pay of the worker (as expressed by reference to a week)" was to be treated as being synonymous with the relevant rate of pay provided by the relevant Industrial Award as being applicable to a full week without overtime ie without working any hours in respect of which penalty rates were applicable.
It was during the course of the proceedings on 16 November 1990 that the learned Commissioner first enquired as to the rate at which the appellant was in fact being paid pursuant to the Act. Nothing had previously been placed before him indicating what that rate was. That was somewhat surprising. The primary issue before the learned Commissioner was not whether the appellant ought to be paid by reference to a 38 hour week or by reference to a 56 hour week. The primary issue before the learned Commissioner was whether the weekly payment then being made was one which ought to be varied. For the purpose of considering that question, it was no doubt appropriate to consider whether payment upon the basis of a 56 hour week was appropriate but only as part of the reasoning process. If reasoning process led to the conclusion that the appellant ought to be paid upon the basis of a 38 hour week, it did not follow that no variation in the rate of weekly payment was required. The learned Commissioner was not entitled to assume that whatever was being paid to the appellant was that payable if the respondents' contention as to the method of calculation was correct.
Unfortunately, the transcript of that part of the proceedings during which the question as to what the appellant actually was being paid was discussed appears to be incomplete. However, it appears that the first respondent's representative asserted that the appellant was being paid at the rate of $483.00 per week. The following exchanges are relevant:
"COMMISSIONER: That would bring it back to 483?
MR PEDAS: Yeah, I would think so, that would account for the difference (inaudible) construction allowances, allowances which are payable (inaudible)
COMMISSIONER: So it sounds right. If he's being paid four eight three at the moment it would be in accordance with what I'm suggesting is his ordinary time rate of pay as expressed by reference to a week under the Award which is Mr Pedas' claim."
I think that the learned Commissioner's arithmetic was wrong. I assume that he was relying upon the rates set forth in the Chief Industrial Officer's letter. I will assume in favour of the respondents that it is only the construction allowance and not the travel allowance that ought to be taken into account in calculating compensation. Upon that basis, the weekly amount payable to the appellant, calculated by reference to a 38 hour week, would appear to have been as follows:
38 hours @ $11.56384 $439.43
Construction allowance –
38 hours @ $1.45 per hour 55.10 $494.53
If the relevant week ought to have been calculated by reference to a 40 hour week, the appropriate amount would have been $520.55. If there was a sufficient basis for finding that the relevant week consisted of either 38 or 40 hours (which is doubtful) there was no basis upon which to find that the relevant week consisted of 38 rather than 40 hours.
It is doubtful whether the learned Commissioner gave any other party the opportunity of dealing with the assertion that a weekly payment of $483.00 was being made, but if one assumes that he was entitled to accept as a fact that the appellant was being paid at the rate of $483.00 per week, and if one assumes the correctness of the rates set forth in the Chief Industrial Officer's letter (which do not appear to have been challenged, and indeed, appeared implicitly to have been accepted by all parties), then it was plain that even if the learned Commissioner's ultimate conclusion as to the basis upon which the appellant was entitled to be paid compensation was correct that the appellant was being underpaid and the payment ought to have been increased, at least to $494.53. If I may say so, the unwarranted assumption made by the learned Commissioner that what was being paid to the appellant was that payable upon the learned Commissioner's view of the law was naturally productive of the unsatisfactory way in which the learned Commissioner conducted the hearings in a procedural sense.
After some further inconclusive discussion as to the possible applicability of s69(1)(a)(i) the learned Commissioner again reserved his decision. On 20 November 1990, the Deputy Registrar issued a purported notice of order in the following terms:
"TAKE NOTICE THAT the above claim has been determined by the Commissioner following the hearing of the matter on the 16TH day of NOVEMBER 1990 when the Commissioner made an order as shown herein.
REASONS FOR ORDER AS PER ATTACHED DECISION"
Accompanying that notice was a document in the form of reasons for judgment entitled "In the matter of an application by the worker under Section 88 of the Workers Compensation Act 1988." It ought to be observed that the appellant had made no application. Those reasons for judgment were in the following terms:
"Worker working overtime by contractual agreement, question as to correct weekly compensation during incapacity, ordinary time rate of pay, correct meaning, Workers Compensation Act 1988, Section 69(1)(a)(ii), 70(2)(b)
In this case a question has arisen as to the correct method of computation of weekly payments of compensation during incapacity. The claimant is a painter. I find he was employed on the express term that he was required to work a seven day week. I find that his pay was calculated on an hourly rate according to the provisions of the relevant award. Thus he was paid an hourly rate calculated on a thirty–eight hour week. He was paid overtime on Saturdays and Sundays on the basis of time and a half and double time as provided for in the relevant award. The job was only scheduled to last about ten weeks. All other painters were employed on the same terms. The work has long since finished and the painters employed have dispersed. The question arises as to the correct payment of the claimant during his period of incapacity. The employer contends that he should be paid at the ordinary weekly award rate plus allowances. The claimant contends that he should be paid on the basis of a fifty–six hour week, at least during the period his job was in progress, and he was incapacitated.
The claim was investigated by an officer of the Department of Employment, Industrial Relations and Training. On the evidence presented to me so far it appears to me that payment during incapacity is only warranted according to the ordinary time rate of pay calculated in accordance with Section 69(1)(a)(ii) of the Act, as the employer and insurer contend. Payment is presently continuing on that basis.
Section 69 of the Act provides that the worker is entitled to compensation at the ordinary time rate of pay or his average weekly earnings, whichever is the greater. In this case there is as yet no evidence to justify a greater payment calculated as average weekly earnings. The worker was only working for his employer for a short time before he was injured. There is no evidence before me to justify the application of Section 70(2)(b) of the Act which is applicable where an attempt is made to calculate average weekly earnings in a case where the worker has only worked for a short time.
I could have adjourned this matter to enable further enquiries to be made. However the parties prefer that I should dismiss the application. If further evidence is forthcoming, a fresh application may be made to me (See Section 62 of the Act)."
Those reasons do not expressly purport to find that the appellant was employed on the express term that he work each week for eight hours on each of the seven days. However, I feel confident that it ought to be inferred that the learned Commissioner proceeded upon the basis that he had made such a finding. He did find that it was an express term that the appellant was required to work a seven day week. The letter from the Chief Industrial Officer, which was before him, asserted that during the appellant's employment the hours of work were eight hours per day for seven days per week, a total of 56 hours. During the course of the proceedings on 16 November 1990, his Honour said, "Everyone had to work 56 hours per week, Saturdays and Sundays included and I accept that." The appellant has submitted that upon the basis of a finding that the appellant was employed on terms that he work seven days per week, eight hours per day, his ordinary time rate of pay as expressed by reference to a week for the purposes of s69(1)(a)(ii) is to be taken as being the rate of pay payable to the appellant for such a 56 hour week. The respondents have submitted that it was not open to the learned Commissioner to find that the appellant was employed on such terms, so that the appellant's argument fails at the threshold, and in the alternative they have submitted that even if that finding of fact was open to the learned Commissioner, then it ought to have led to the conclusion that the appellant was entitled to be paid upon the basis of a 38 hour week.
It was quite wrong for the learned Commissioner to make a finding of fact that the appellant was employed by the second respondent upon terms that the hours of work were 56 hours per week, being 8 hours each day upon the basis of the material which he had. That fact was very much a fact in issue. It was incapable of being fairly determined without the taking of evidence in some form and giving the opposing party or parties a reasonable opportunity to test and contradict such evidence. The provisions of s49(1) of the Act provide no warrant to make findings of fact unless each party has had a proper opportunity of putting before the learned Commissioner material relevant to such issue of fact and of challenging and testing any such material put before him by any other party or which the learned Commissioner otherwise proposes taking into account, such as the material provided by the Chief Industrial Officer. The learned Commissioner heard conflicting assertions during argument but heard no evidence from the parties. There was no basis upon which he could properly have determined this disputed issue of fact.
It is appropriate to make some other observations. I assume that the "Notice of Order" was intended to constitute the formal order required by s61 of the Act. If my assumption is correct, then the document is plainly defective. The reference to "an order as shown herein" is meaningless. Whilst proceedings before the Workers Compensation Commissioner may be attended with substantial informality, s61 is mandatory in requiring there to be a form of order (not a notice of order), copies of which are required to be served upon the parties. Such form of order must identify in its terms the proceedings in which the order was made and the text of the order made. If the reference to "shown herein" was intended to be a reference to the reasons for judgment, then that is an impermissible device. In any event, it will be observed that the reasons for judgment do not disclose any form of order at all. At best they might lead to an inference that the application was to be dismissed. It is incumbent upon the Workers Compensation Commissioner, having given reasons for a decision, to actually pronounce an order and it is that order which is to be drawn up for the purposes of s61. My experience indicates that the form of notice of order utilized in this case is one commonly adopted as the form of order in the Workers Compensation Division of the Court of Requests. If I am correct as to that then that practice ought to cease, and in each case a formal order ought to be drawn up in conventional terms.
It appears that the learned Commissioner construed s69(1)(a)(ii) of the Act, and in particular the expression "the ordinary time rate of pay of the worker (as expressed by reference to a week)" as meaning the ordinary weekly award rate together with usual allowances for a basic week's work without taking into account overtime, whether or not there was a contractual term that overtime be worked.
When this appeal was argued I was not referred to the decisions of the High Court in Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362 and Catlow v Accident Compensation Commission (1989) 167 CLR 543. I invited the parties to submit further argument by reference to those cases and they did so. I note that those cases were not referred to by Wright J in Johns Perry Haywood Pty Ltd v Greaves (No. 2) Serial No. 131991 (upon which the appellant relied) and I assume that his Honour was not referred to them.
In Kezich v Leighton Contractors Pty Ltd (supra) the court was concerned with provisions of the Western Australian Workers' Compensation Act 1912–1973. By clause 1(c)(i) of the Schedule to that Act an incapacitated worker was entitled to be paid an amount equal to his weekly earnings computed in accordance with clause 2. Clause 2 was in the following terms:
"For the purposes of this Act, 'weekly earnings' means the amount of the ordinary wage or salary (including any over award payment) the worker would have received for the ordinary hours he would have worked, if he were not incapacitated for work as a result of the injury."
In that case, the appellant's employment with the respondent was governed by an award which provided inter alia that "the ordinary working hours shall be 40 in a week to be worked in five days." and fixed rates of pay which were to be paid for the "ordinary working hours" and provided for payment at an increased rate for all work in excess of the hours prescribed in the clause fixing ordinary working hours at 40. The appellant was engaged by the respondent on the basis that he would normally work 60 hours per week, being ten hours on each of six days each week. Gibbs J (with whom the majority of the members of the court agreed) said, at pp365–366:
"The word 'ordinary' means 'regular, normal, customary, usual'. A man's 'ordinary hours' of work are the hours during which it is usual for him to work. There is nothing in the expression 'ordinary hours' that connotes payment at any particular rate, and to understand the words as meaning 'hours during which work is done for which overtime is not paid' would be to place upon them a meaning which they simply do not bear. The expression 'the ordinary hours he would have worked' in my opinion means the same as 'the hours he could ordinarily have worked' and it is of course no reason to depart from the proper meaning of the words because the same meaning could have been achieved by a different form of words; in the collocations to which I have just referred the use of the adjective instead of an adverb does not change the sense of the expression.
With respect, I cannot agree with the suggestion that if the phrase is construed in this way the word 'ordinary' would add nothing to its meaning. If the word 'ordinary' where it appears before 'hours' had been omitted from cl 2, it would not have been clear whether, in the common case in which a workman's hours of employment had varied from week to week, depending upon whether he had worked overtime and on how much overtime he had worked, the hours mentioned were to be determined by ascertaining what hours were ordinarily worked or by taking an average or in some other way. As the clause stands, what has to be determined is what were the hours the workman would ordinarily have worked had he not been incapacitated. The workman is then to be paid the wage he would ordinarily have received for working those hours. The clause is not concerned with the question whether the 'ordinary wage' included something extra for overtime, but solely with the question what was ordinary for the particular worker concerned.
In my opinion, the words of cl 2 of the schedule, when read with cl 1(c)(i), on their proper construction have the effect that during total incapacity the workman is to receive as compensation a weekly amount calculated by applying to the number of hours he would ordinarily have worked each week the rate of pay (including overtime) that he would ordinarily have received in respect of those hours. There is nothing in this result that is absurd or inharmonious with the scheme of the Act; on the contrary, construed in this way, the schedule provides what appears to me to be an eminently fair basis of compensation to a workman who has been totally incapacitated by his injury.
On this construction, the application of the schedule to the present case presents no difficulty. In fact, in accordance with the terms of his engagement, the applicant usually worked sixty hours per week. The ordinary hours he would have worked, had he not been incapacitated, amounted to sixty hours per week."
At first blush, those observations may appear to support the appellant's submissions as to the proper construction of s69(1)(a)(ii), but it may be that there is an important distinction to be drawn between the Western Australian provision and s69(1)(a)(ii). Accepting the meaning attributed to the word "ordinary" by Gibbs J may still lead to a different result in the present case. "Ordinary hours of work" may need to be determined by reference to what is ordinary for the particular worker. "Ordinary time rate of pay" may need to be determined by reference to something else.
In Catlow v Accident Compensation Commission (supra) the appellant worker had agreed with his employer to work such number of hours in any working week as the employer required in addition to the 36 hours which employees were required to work under the industrial agreement which governed the employment. During a period of twelve months prior to the date upon which the appellant was injured in the course of his employment, he had worked a total of 664.5 overtime hours in addition to the hours required by that industrial agreement. The relevant provisions of the Accident Compensation Act 1985 (Vic.) were in the following terms:
"93 — (1) If a worker's total incapacity for work results from or is materially contributed to by an injury which entitles the worker to compensation the compensation shall be in accordance with this section.
.....
(4) Subject to this section, a weekly payment to a worker shall be an amount equivalent to —
(a)80 per cent of the worker's pre–injury average weekly earnings; or
(b) $400––
whichever is the lesser.
.....
95 — (1) In sections 93 and 94, the workers pre–injury average weekly earnings means —
(a)the average weekly earnings during the 12 months preceding the relevant injury if the worker has been employed by the same employer for that period; or
(b)the average weekly earnings for the period less than 12 months preceding the relevant injury for which the worker has been employed by the same employer —
calculated at the worker's ordinary time rate of pay for the worker's normal number of hours per week."
It was conceded before the court that the phrase "the worker's ordinary time rate of pay" appearing in s95(1) did not include any overtime rate. The appellant contended that the calculation required by s95(1) was to proceed upon the basis of multiplying the total number of hours which the appellant usually worked (including overtime hours) by the rate provided for by the relevant industrial award as the ordinary time rate. Such a concession could readily be made in that case because of the ceiling provided for by s93(4)(b) which made it irrelevant whether overtime hours were to be taken into account at the ordinary time rate or at the overtime rate. All members of the court had regard to the course of Parliamentary proceedings leading to the enactment of the Act, which course was authorised by s35 of the Interpretation of Legislation Act 1984 (Vic). Such a course is not permissible in the present case, and it was not suggested that I could have regard to any such material. Upon that basis alone, it might be said that Catlow's case is distinguishable. However, the meaning which was the conceded meaning of the expression "ordinary time rate of pay" is plainly the meaning which ought to be attributed to that expression in the Act. McHugh J, whose judgment expressed the opinion of the majority of the court, did not suggest other than that the concession had been properly made. In their dissenting judgment, Brennan and Gaudron JJ appear to express a view indicative of an acceptance by them that the conceded meaning of that expression was correct when they said, at pp550–551:
"The words 'ordinary time' are plainly adjectival, qualifying 'rate of pay'. If the phrase 'for the worker's normal number of hours per week' did not express a separate factor but were merely an adjectival phrase qualifying 'rate of pay', the entire phrase would be tautologous. Even if the entire phrase be understood as descriptive of a weekly rate of pay (as the Commission contends), the weekly rate must simply be the amount payable to the worker for all the normal number of hours worked, however ascertained, but leaving out of account any payments or loadings which are not 'ordinary time' rates."
Primarily the court was concerned with the meaning to be attributed to the expression "normal weekly number of hours", as appearing in s95(1) of the Victorian Act. No such expression appears in the Tasmanian Act. McHugh J (at p562) found support for the proposition that expression "the normal number of hours per week" as used in s96(1) meant the ordinary hours fixed by the terms of employment from various provisions of the Victorian Act which assumed that the normal number of hours per week would be fixed by industrial award or agreement. The expression used in s69(1)(a)(ii) of the Act might more readily be construed as having a meaning similar to that attributed by McHugh J to the expression appearing in the Victorian Act.
The words "ordinary time" appearing in s69(1)(a)(ii) must be given some meaning. They must be taken as having been used by the legislature in the knowledge that in normal circumstances a worker will be subject to the provisions of an industrial award or agreement which provides for a basic number of hours to be worked in each week, which number of hours is to be remunerated at a particular rate, expressed by reference to an hourly, weekly or other rate (see R v Galvin; Ex parte Metal Trades Employers' Association (1949) 77 CLR 432 at p447). That is the rate referred to in this paragraph as "the ordinary time rate of pay". If the relevant industrial award or agreement itself provides for a basic number of hours to be worked each week and provides for the remuneration payable for working the total of those hours, it can be said that the award or agreement itself provides for an ordinary time rate of pay expressed by reference to a week. In those circumstances, assuming that the award or agreement is the source of the worker's right to remuneration, that is the relevant rate for the purposes of s69(a)(ii). In other circumstances, a weekly rate may not itself be specified by the award, but what is the rate expressed by reference to a week may be determined by reference to the basic number of hours to be worked in a week and the hourly rate of remuneration provided for those hours. The provisions of s69(3) of the Act lend some support to that construction. It may be that a worker's entitlement to remuneration is not to be found in an industrial award or agreement. It may be found in a contract of service, either in circumstances where there is no relevant industrial award or agreement or where the contract provides remuneration greater than that provided for in the relevant industrial award or agreement. Such a contract might provide for a basic number of hours to be worked each week and provide for a fixed weekly salary by way of remuneration for those hours. The number of hours may be greater than that provided for in a relevant award. Assuming that there is an applicable award which provides for minimum remuneration but does not operate to prevent the parties from entering into a contract not offending the minimum provisions of the award, then it seems to me that in such a case the rate for the purposes of s69(1)(a)(ii) would be the weekly rate specified in the contract. In many circumstances the source of an employee's entitlement to remuneration is to be found in an industrial award or registered agreement. Nevertheless, even if the work done by an employee is governed by a relevant award or agreement, the employee may still have entered into a contract of service and may still derive his entitlement to remuneration from that agreement as distinct from the award (True v Amalgamated Collieries of Western Australia Ltd (1940) 62 CLR 451).
In Catlow v Accident Compensation Commission (supra) McHugh J held, at p566, as follows:
"The appellant's 'pre–injury average weekly earnings' in this case had to be calculated by determining what were his total weekly earnings calculated by reference to the ordinary time rate of pay for the ordinary hours for the relevant period and then obtaining a weekly average of that sum."
Whilst his Honour was considering somewhat different statutory provisions and was led to that conclusion by a somewhat different path, I conclude that the ordinary time rate of pay of the appellant, as expressed by reference to a week for the purposes of s69(1)(a)(ii) is to be determined in the same manner except that no averaging process is required.
I conclude that the meaning to be expressed to the expression "the ordinary time rate of pay of the worker (as expressed by reference to a week)" is to be determined by reference to a week constituting the basic hours fixed by the terms of the employment to the extent that they are not to be remunerated at penalty rates. If in the present case the appellant had agreed to work for 56 hours per week at a rate of $1,000.00 per week, assuming that the Chief Industrial Officer's calculations correctly demonstrate that that would not offend the provisions of any relevant award, then the sum of $1,000.00 would be the ordinary time rate of pay expressed by reference to a week. If, on the other hand, the appellant contracted to work for 56 hours per week, leaving his entitlement to remuneration to be determined by reference to the relevant award, then, assuming that the award provided that all hours in excess of 38 in any one week were to be remunerated at penalty rates, the ordinary time rate of pay by reference to a week ought to be taken as the basic hourly rate of pay multiplied by 38. It is correct to say that the Act demonstrates a broad intention that workers do not suffer financial detriment as the result of being unable to work due to injury occurring in the course of employment (albeit subject to the general limitation imposed by s60(6)), but the provisions of the Act do not uniformly require that such a result ensue. A construction not entirely consistent with such an approach ought not to be taken as offending the policy evinced by the provisions of the Act. No doubt perceived unfairness was intended to be ameliorated by s69(1)(a)(i). The applicability of that provision appears to have been dismissed by the learned Commissioner upon the basis that no evidence had been placed before him indicative of what the average weekly earnings of the appellant had been. It may well be that the rate of compensation initially being paid to the appellant was calculated by reference to that provision. Rather surprisingly, the appellant took no proceedings to enforce payment at the initial higher rate once the respondents unilaterally reduced it. It would appear that if the appellant had demanded the continuation at that higher rate and the respondents had declined to pay it, then the appellant could have referred that matter to the Commissioner under s42(1). On the face of it, although I do not decide what is a hypothetical question, the respondents would have had no answer to the appellant's claim because of the express provisions of s86(1). In that event, a review under s88(1) would then have been a review of the higher rate. In such an event the respondents might well have carried the burden of proving that a reduction in the weekly payment was justified and that if such justification was sought to be found in s69(1), the respondents would have needed to establish not only that the amount being paid was greater than that calculated by reference to s69(1)(a)(ii), but also that it was greater than the amount calculated by reference to s69(1)(a)(i).
I summarise my conclusions as follows:
(1)The learned Commissioner did not have before him sufficient material upon which it was open to him to make the necessary findings of fact in this case, in particular as to the precise terms of the appellant's employment.
(2)Such findings of fact as to the terms of the appellant's employment as the learned Commissioner did make were not open to him in that he had before him no more than general conflicting assertions of fact which were not tested in any way.
(3)The learned Commissioner had before him uncontradicted assertions that the weekly payment being made to the appellant was less than that which ought to have been made, so that if it was otherwise open to the learned Commissioner to determine the application he was wrong in dismissing it.
(4)The learned Commissioner ought to have conducted, but did not conduct, the proceedings with procedural fairness with a view to having relevant issues of fact determined. No proper opportunity was given to the parties to lead evidence and to test evidence led by any other party or obtained by the Commissioner.
I ought to make some final general observations about the procedure adopted by the learned Commissioner. The persons who appeared before him were lay advocates. It is undoubted that the learned Commissioner was entitled to permit such representation, although it does not appear that he complied with the provisions of s47(2). Where parties are represented by lay advocates, there is imposed upon a legally qualified court or tribunal a particular obligation to ensure that the proceedings are conducted fairly. Questions of fact must be separated from questions of law. The issues of fact ought to be clearly identified. The Commissioner should not find anything as being a fact unless the matter is clearly agreed or not in dispute, or after there has been a proper opportunity for testing the evidentiary material upon the basis of which the existence of such a fact might be found. What appears to have occurred in this case seems to have amounted to no more than a series of round table discussions with various parties making various assertions of fact and law. Having given no party a real opportunity to test any evidence, the learned Commissioner was not in a position to make any finding of fact on any disputed issue. I have found this a most confusing appeal to attempt to determine by reason of the most unsatisfactory way in which the hearing was conducted. Notwithstanding the informality permitted in proceedings before the Workers Compensation Commissioner, the learned Commissioner ought to have made careful findings of the relevant facts based upon agreement or tested evidence.
It is plain from my conclusions that the decision of the learned Commissioner cannot stand. It is equally plain that I cannot determine what order the learned Commissioner ought to have made. Some of the relevant matters of fact were not the subject of evidence before him. Whilst the absence of such evidence might be considered to be fatal to the interests of a party carrying the burden of establishing the relevant fact by such evidence, that can not be an answer in the present case. Dealing with lay advocates in an informal situation it was the duty of the learned Commissioner to direct the attention of the parties to those issues of fact which appeared to him to be relevant, and to make it quite plain to them that if any of those facts were in dispute, they ought to be the subject of evidence. This was clearly a case where not only the parties but also the learned Commissioner would have benefited from the assistance of competent counsel at an early stage of the proceedings. The application gave rise to questions of fact and law which were of some complexity. The exercise of the Commissioner's jurisdiction was not assisted by an inept form of application such as the present. Obviously it was drawn without the benefit of legal advice. If there is a disinclination on the part of those exercising jurisdiction under the Act to permit legal representation in cases such as the present, then the sooner that attitude changes the better. As the learned Commissioner rightly observed during the course of the proceedings, there are quite a number of difficult questions of construction which appear to arise under the Act. In such cases, parties ought to be made aware of the issues which arise and be encouraged to be represented by counsel.
In the light of my conclusions, I must set aside the learned Commissioner's order of dismissal. The matter will need to be re–heard. In the circumstances, it is desirable that the case not go back to the learned Commissioner. Accordingly, I make the following orders:
1That the order of dismissal made by the learned Commissioner on 20 November 1990 be set aside.
2That the respondents' application dated 31 August 1990 be re–heard by a part–time Workers Compensation Commissioner appointed pursuant to s19 of the Workers Compensation Act 1988.
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