Wilson v Active Metal Roofing Pty Ltd
[2020] VMC 6
•17 APRIL 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. K11381717
| DANNY WILSON | Plaintiff |
| v | |
| ACTIVE METAL ROOFING PTY LTD | Defendant |
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MAGISTRATE: | M HOARE |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 11 FEBRUARY 2020 |
DATE OF DECISION: | 17 APRIL 2020 |
CASE MAY BE CITED AS: | WILSON V ACTIVE METAL ROOFING PTY LTD |
MEDIUM NEUTRAL CITATION: | [2020] VMC006 |
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CATCHWORDS – Workers Compensation – Weekly Payments – Pre-Injury Average Weekly Earnings – Deemed Worker - Deduction of ‘applicable prescribed percentage’ – Principles of Statutory Interpretation - ‘Materials and equipment’ - Whether ‘and’ conjunctive or disjunctive – Workplace Injury Rehabilitation and Compensation Act 2013 Schedule 1, cl.9(5), Workplace Injury Rehabilitation and Compensation Regulations 2014 r.11
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Plaintiff | Mr G Smith | Stringer Clark |
For the Defendant | Ms Wiltshire | Minter Ellison |
HER HONOUR:
Introduction and overview
1. Mr Wilson, a roofing plumber, suffered work-related injuries including fractures to his skull, his clavicle and a closed head injury on 18 April 2018 as a result of a fall from a roof (‘the incident’).
2. Mr Wilson had commenced work on or about 5 February 2019 as a sub-contractor roofing plumber with the defendant Active Metal Roofing Pty Ltd (‘Active Metal’). There was no dispute that Mr Wilson was a ‘deemed worker’ at the time of the incident pursuant to clause 9 of Schedule 1 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). He has an accepted WorkCover claim for injuries sustained as a result of the incident.
3. Mr Wilson challenges the authorised insurer’s calculation of his pre-injury average weekly earnings (‘PIAWE’) under the Act.
4. The authorised insurer has, in calculating the plaintiff’s PIAWE, deducted the ‘applicable prescribed percentage’ based on an assumption that the remuneration paid to him by the defendant was inclusive of materials and equipment.
5. Mr Wilson claims that the remuneration was entirely for his labour and that the applicable prescribed percentage does not apply in the calculation of his PIAWE.
6. Neither party called evidence in the hearing of this matter.
7. I am required to determine, as a matter of statutory interpretation, whether the plaintiff’s tools ought to be construed as ‘material and equipment’.
Agreed facts and matters not in issue
8. The following facts were agreed or were not in dispute between the parties:
a. There was no written contract between Mr Wilson and Active Metal.
b. Mr Wilson was paid $45.00 per hour by Active Metal for his work.
c. Prior to the incident, Mr Wilson had worked with Active Metal for a period of 11 weeks and was paid a total amount of remuneration of $17,022.50.
d. It was either an implied or an express term of the contract that Mr Wilson provide his own tools in performing roof-plumbing services for Active Metal.
e. In performance of the contract, Mr Wilson supplied the following:
Left and right offset strips;
Tape-measure;
One-metre ruler;
Hammer and chisel;
Spirit levels (a torpedo level and long level);
Pop riveters;
Silicone gun;
Clamps (standard and flat);
Plastic square;
Impact driver drill and various related bits for the drill.
9. The authorised agent has, by notice dated 18 June 2018, assessed Mr Wilson’s PIAWE amount at $1,161.00. It calculated this figure by deducting from the total remuneration figure ($17,022.50) the ‘applicable prescribed percentage’ of 25 per cent (thus reducing his remuneration to $12,767.97 then dividing that by eleven weeks being the number of weeks of work with the defendant).
Relevant legislation
10.As Mr Wilson was a deemed worker, the calculation of his PIAWE was governed by Clause 9(5)(c) contained in Schedule 1 of the Act.
11.The applicable prescribed percentage has been deducted by the insurer in accordance with Clause 9(5)(c)(i).
12.The operation of Clause 9(5)(c)(i) is governed by the Workplace Injury Rehabilitation and Compensation Act Regulations 2014 (‘the Regulations’) and, specifically, by R.11 which is headed ‘Amounts not remuneration – contractors’. The requirements that must be satisfied for the operation of Clause 9(5)(c))i) are set out in R.11(2): namely, that the contractor must have purchased ‘materials and equipment’ for the provision of services or must have provided ‘materials and equipment’.
13.The terms ‘materials’ and ‘equipment’ are not defined in either the Act or the Regulations.
The Plaintiff’s Submissions
14.Counsel for the Plaintiff submitted:
a. In the absence of legislative definition of the terms ‘equipment’ and ‘materials’, the words should be accorded their ordinary, everyday meaning. Counsel for the plaintiff referred to the Cambridge Dictionary definitions of ‘equipment’ as a set of necessary tools and ‘materials’ as a substance that things can be made from.
b. Mr Wilson’s tools (as listed in Agreed Facts) were ‘equipment’ according to the word’s ordinary, everyday meaning but nothing he had provided could be construed as ‘materials’.
c. The word ‘and’ in the expression ‘materials and equipment’ in the Regulations ought to be interpreted, it was submitted, in its ordinary and conjunctive sense. This follows the High Court authority of Victims Compensation Fund Corporation v Brown & Ors [2003] HCA 54 at [12] as well as of the Court of Appeal in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 at [50].
d. Such a construction would require a finding that the plaintiff had provided both ‘equipment’ and ‘materials’ in order to satisfy the test in R.11(2).
e. The plaintiff submits further that, there are only two categories of cases where the word ‘and’ should be read disjunctively, that is as an ‘or’: firstly, where if ‘and’ were given its ordinary meaning, the result would be ‘so extraordinary’ that in order to make sense of the provision, the court would be obliged to read the word ‘and’ as if it had been ‘or’; or secondly, in where in a list of items the word ‘and’ is used to join the items which showed the list was a list of alternatives: Di Paolo v Salta Constructions Pty Ltdat [51-52].
f. According to Counsel for the plaintiff, neither of those circumstances apply and I should adopt the ordinary meaning which would require me to be satisfied that the plaintiff had provided both ‘materials and equipment’.
g. As the plaintiff had provided ‘equipment’ only, the requisite test in R.11 was not satisfied to permit the authorised agent under Clause 9(5)(c)(i) to deduct the applicable prescribed percentage.
The Defendant’s Submissions
15.Counsel for the defendant submitted:
a. In the task of statutory interpretation, it was submitted by Counsel for the Defendant, the High Court’s approach in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998]HCA 28 should be adopted. There, the Court held [at 69] that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of the statute.
b. The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have: Project Blue Sky at [78]
c. In considering the purpose of the Regulations, the Objective is set out in R.1(c) which is to prescribe:
certain other matters or things required or permitted to be prescribed or necessary to be prescribed to give effect to the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 .
d. Also relevant to the question of statutory construction, Counsel for the Defendant submitted, is the Explanatory Memorandum to the WIRC Bill which sets out in Clause 1 the Bill’s purposes which are inter alia to ‘simplify’ provisions relating to the rehabilitation and compensation of workers.
e. A conjunctive construction of the expression ‘materials and equipment’ which distinguishes between ‘equipment’, on the one hand, and ‘materials’ on the other would, it was submitted by the defendant, would add complexity to the assessment of renumeration of contractors and would not be in keeping with the objective and purposes of simplifying and streamlining the scheme.
f. In considering the legislature’s purpose, Counsel for the defendant also relied upon references in the Explanatory Memorandum in relation to Clause 9 regarding deemed employment relationships including–
The labour component of the contract is more than the non-labour (materials/equipment) component.
Further on, also in relation to Clause 9, the commentary states in the Explanatory Memorandum, under the heading ‘Deemed Remuneration’, inter alia:
A feature of the concept of remuneration in the legislation is that it reflects the amount that is paid or payable by an employer or to worker for work performed by the latter. That is, it should not reflect any payment for materials, goods or equipment that the worker may also provide in conjunction with his or her labour.
g. These references, it was submitted for the defendant, indicate legislative intent that the expression ‘materials and equipment’ was to be read disjunctively. Separating out the materials and equipment such that the test in R. 11(2) was only satisfied if both were provided imposes a complication that is at odds with the broad legislative purpose of simplifying the scheme.
h. As the plaintiff had provided equipment, the test in R.11 in respect of ‘materials and equipment’ was satisfied and the authorised agent had correctly deducted the applicable prescribed percentage.
Analysis
16.The principles of statutory construction were recently enunciated by the Court of Appeal in Lanciana v Alderuccio [2019] VSC 198 at [47] to [55]. Where the ordinary meaning of the text is consistent with the legislative purpose, the court will apply that as the legal meaning: Lanciana at [50].
17.The purpose and objectives of the Regulations, as the defendant has noted, is to simplify provisions relating to the rehabilitation and compensation of workers.
18.I am not persuaded by the defendant’s argument that it follows from the references in the Explanatory Memorandum referred to above that the word ‘and’ was used in the Act when the Parliament really intended to use ‘or’. Those references are, in my view, by way of explanation used to distinguish non-labour components from labour in relation to remuneration.
19.The words of the statute, not non-statutory words seeking to explain them, have paramount significance: Nominal Defendant v GLG Australia (2006) 228 CLR 529, 538 cited with approval by Court of Appeal in Lanciana at [54].
20.The concept of materials (being substances that things can be made from such as, for example, pipes, tubing, cement, bricks or tiles) is quite distinct from the concept of equipment or a set of tools. It is illogical to infer that the Parliament intended for the terms ‘materials’ and ‘equipment’ to be interchangeable in the sense that the test of purchasing or providing ‘materials and equipment’ would be satisfied by the provision of either materials or equipment.
21.Had the legislature intended that the test in R.11 was satisfied by contractors providing either equipment or materials, I am of the view that it would have said so. In other words, had the legislature intended to use the word ‘or’, it would have done so.
22. The Court of Appeal in Lanciana at [53] outlined the four circumstances which justify a court departing from the ordinary meaning of a provision which are as follows:
-where the literal meaning would conflict with other provisions of the statute
-where the literal meaning would be inconsistent with the purposes of the statute
-where the literal meaning is incapable of practical application
-where the literal meaning would lead to a result which is absurd, unreasonable or anomalous.
23.As noted, I am not persuaded that there are circumstances here that would justify this court departing from the ordinary meaning of the expression ‘materials and equipment’.
24.As the High Court observed in Victims Compensation Fund v Brown at [13]: The ordinary meaning of ‘and’ is conjunctive. In that instance, the Court was considering the expression ‘symptoms and disability’ and the Court there found there was no occasion to depart from the ordinary meaning.
25.I am of the view there is also no occasion here to depart from the ordinary meaning.
26. The Court of Appeal in Di Paolo v Salta Constructions Pty Ltd & Ors specifically outlined the two categories of cases when the word ‘and’ can be used disjunctively at [51-52]. For the reasons outlined above, I agree with the submission’s of the plaintiff that in the present instance there is no basis or grounds to read the word ‘and’ in the expression ‘materials and equipment’ in an extraordinary way or in other than its ordinary meaning. Nor do I consider that the expression ‘materials and equipment’ falls within the second category of exception in Di Paolo to employ a conjunctive reading, within in a list or class of alternatives. In my view, two items in an expression such as ‘materials and equipment’ do not comprise a list or class.
27.In my view Mr Wilson’s remuneration of $45 per hour was for his labour only and did not include an allowance for costs of materials and equipment. There was simply an implied understanding between Mr Wilson and Active Metal was that he would provide his own tools to perform the roof-plumbing services under the contract of service. The tools provided by Mr Wilson were all re-usable in nature and nothing he provided was major equipment specific to the task or job, such as scaffolds, cherry-pickers and the like. Additionally, he provided nothing that could be considered materials such as pipes, tubing, tiles and the like.
28.As the plaintiff had provided ‘equipment’ only, the requisite test in R.11 was not satisfied to permit the authorised agent under Clause 9(5)(c)(i) to deduct the applicable prescribed percentage.
29.For completeness, I do not consider, as submitted by Counsel for the Defendant, that reliance cannot be placed on the comments made in passing by Magistrate Wright in Deans v Somerville Plaster Pty Ltd (14 February 2014): at para [7]. That case turned on quite a different issue relating to the ascertaining of remuneration not attributable to the contractor’s labour where he was in a partnership.
Conclusion
30.I find in favour of the plaintiff.
31.I find that the authorised insurer has incorrectly calculated Mr Wilson’s PIAWE and that his PIAWE should be re-assessed pursuant to Clause 9(5)(c)(ii) of Schedule 1 of the Act based on his total amount of remuneration for the eleven-week period of $17,022.50. On that basis, I consider the appropriate weekly amount of remuneration to be $1547.50.
32.I invite the parties to make submissions regarding orders sought or to file proposed minutes of consent.
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