Woolworths Limited v Salam
[2017] NSWWCCPD 35
•17 August 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Woolworths Limited v Salam [2017] NSWWCCPD 35 | |
| APPELLANT: | Woolworths Limited | |
| RESPONDENT: | Abdus Salam | |
| INSURER: | EML as Claims Agent for Woolworths Limited | |
| FILE NUMBER: | A1-6636/16 A2-6636/16 | |
| ARBITRATOR: | Mr G Edwards | |
| DATE OF ARBITRATOR’S DECISION: | 28 March 2017 | |
| DATE OF APPEAL DECISION: | 17 August 2017 | |
| SUBJECT MATTER OF DECISION: | Schedule 3 of the Workers Compensation Act 1987 – ‘worker employed by 2 or more employers’; extension of time to appeal pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011; ‘fresh evidence’ on appeal – application of CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501; the Commission as a specialist tribunal – knowledge of wages | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | BBW Lawyers |
| Respondent: | Sandford Legal | |
| ORDERS MADE ON APPEAL: | 1. The worker’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. 2. As regards the Arbitrator’s decision dated 28 March 2017: (a) Paragraph 1 is amended to substitute the figure ‘$151.57’ for the figure ‘$880.36’. (b) Paragraph 2 is confirmed. | |
INTRODUCTION
Applications to Appeal have been lodged by both Woolworths Limited (the employer) and Abdus Salam (the worker). To avoid confusion I have referred to the parties as “the worker” and “the employer” respectively in this decision, regardless of which of the appeals is being dealt with. The employer’s appeal raises issues going to the calculation of ‘pre-injury average weekly earnings’ (PIAWE) pursuant to Sch 3 of the Workers Compensation Act 1987 (the 1987 Act) (Sch 3), where the worker is employed by “2 or more employers”. The employer appeals against a decision that the calculation of PIAWE in the circumstances was to be by “reference to earnings from work with all the employers” (Sch 3, Item 7). The worker subsequently lodged an appeal out-of-time, in which he challenges a factual finding of the Arbitrator going to the amount he is able to earn in suitable employment. The worker then lodged, without leave, an Amended Application to Appeal in which he seeks to rely on fresh evidence. The employer objects to that course.
BACKGROUND
The worker suffered injury to his shoulders in the course of his employment with the employer on 5 December 2014. At that time the worker also had a job with Access Group Solutions (Bondi) (Access), as a cleaner. The worker said that he resigned from that job in December 2014 due to his shoulder injury. He obtained medical treatment. He was placed on restricted duties with the employer from 31 March 2015, when he resumed work with the employer following a holiday to visit family in Bangladesh. The problem did not settle, and he eventually made a claim for compensation, after discussion with his employer, in July 2015. Voluntary payments were made. In December 2015 Dr Herald, orthopaedic surgeon, recommended surgery to the worker’s left shoulder, and he was certified unfit until the surgery was carried out.
The employer’s insurer denied liability in a s 54 notice dated 16 March 2016, which raised multiple issues, including ‘injury’ and s 9A of the 1987 Act. It denied that the proposed surgery resulted from any workplace injury. Voluntary payments were terminated as at 1 April 2016.
THE ARBITRAL PROCEEDINGS AND DECISION
The worker’s Application to Resolve a Dispute was registered on 20 December 2016 (the Application). An arbitration hearing was held on 15 March 2017. The worker was represented by Mr Allen Parker, instructed by Mr Farah. The respondent was represented by Mr Gaitanis. Neither party sought to call oral evidence or to cross-examine. The matter was dealt with on the documentary material, counsel for the parties addressed, and the Arbitrator reserved his decision.
A Certificate of Determination was issued on 28 March 2017, accompanied by a Statement of Reasons (reasons).
The Arbitrator found that the worker injured both of his shoulders on 5 December 2014, and the bilateral shoulder injuries were aggravated, accelerated, exacerbated or deteriorated due to the worker’s work tasks from 5 December 2014 until he stopped work with the employer on 12 December 2015 (reasons at [89]–[91]). The Arbitrator found that employment was a substantial contributing factor to the injury (reasons at [92]–[93]). He found that the left shoulder surgery recommended by Dr Herald was reasonably necessary as a result of injury (reasons at [98]–[99]). None of these findings, or the entitlements that flow from them, are challenged on this appeal.
Dealing with the weekly entitlement, the Arbitrator found that the worker’s injury resulted in “partial incapacity to work for the [employer] and Access” (reasons at [136]). He found that the worker was “employed by the [employer] and Access as at 5 December 2014 when he sustained the injury” (reasons at [139]). He found that the worker had a ‘current work capacity’ within the definition in s 32A of the 1987 Act (reasons at [140]).
The Arbitrator said that the legislation was to be read in accordance with the “plain, ordinary and natural meaning of the words”, referring to Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 at [47], [69] and [78]. The Arbitrator, at [143] of the reasons, said that Item 7 of Sch 3, Columns 2 and 3 made it clear:
“… where a worker employed by two or more employers sustains an injury that results in an incapacity to work for one or more of those employers but not for all of those employers the calculation of the PIAWE is in accordance with Division 2 of Part 3 of the 1987 Act with reference to earnings from work with all the employers.” (emphasis in original)
The Arbitrator concluded that it was necessary that PIAWE be calculated based on the worker’s earnings with both the employer and Access. These figures were agreed at $939.46 and $911 respectively, a total of $1,850.46 (reasons at [145]–[147]). He accepted that the worker had a capacity to work in suitable employment, such as “the education and accountancy industries”, for 15 to 20 hours per week, with an ability to earn of $600 per week. After applying the formula in s 37(3)(a) of the 1987 Act, the Arbitrator entered a weekly award at the rate of $880.36 from 12 December 2015 to date and continuing (reasons at [146]–[160]).
THE APPEALS
Both parties’ appeals go to quantification of the weekly entitlement. However, the issues raised in the appeals are discrete. That of the employer deals with Sch 3 of the 1987 Act, and identification of the appropriate quantification of PIAWE. That of the worker deals with assessment of his ability to earn. They can be dealt with separately. I will deal initially with that of the employer, which was the first in time to be lodged.
GROUNDS OF APPEAL – NO A1-6636/16
The grounds raised in the employer’s appeal are:
(a) The Arbitrator erred in finding that PIAWE should be calculated by reference to Item 7 of Sch 3 of the 1987 Act (Ground No 1).
(b) The Arbitrator erred in not finding that PIAWE should be calculated by reference to either Item 5 or Item 8 of Sch 3 of the 1987 Act, rather than Item 7 (Ground No 2).
(c) The Arbitrator erred in calculating the PIAWE, and hence the weekly entitlement, by reference to PIAWE determined pursuant to Item 7, rather than Item 5 or Item 8 (Ground No 3).
It is apparent from the above that there is effectively a single issue in the employer’s appeal, going to the appropriateness of Item 7 of Ch 3 as a basis to determine PIAWE in the circumstances.
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. I note that the parties, in the worker’s appeal no A2-6636/16, also submit that appeal can be determined on the papers.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the 1998 Act, relating to the employer’s appeal, have been met.
NATURE OF THE APPEAL
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
LEGISLATIVE PROVISIONS
Section 44C(4) of the 1987 Act provides:
“(4) In relation to a worker of a class referred to in Column 2 of an item in Schedule 3, pre-injury average weekly earnings means the amount determined in accordance with Column 3 of that item, expressed as a weekly sum.”
Schedule 3 of the 1987 Act, in its provision for workers employed by “2 or more employers”, relevantly provides:
SCHEDULE 3 – Pre-injury average weekly earnings
(Section 44C)
Column 1
Column 2
Column 3
Item
Class of worker at time of injury
Calculation of pre-injury average weekly earnings
2
Worker employed by 2 or more employers and who works for one of those employers for at least the ordinary hours fixed in any applicable fair work instrument.
The worker’s pre-injury average weekly earnings are to be calculated in accordance with Division 2 of Part 3 with reference to the work for the employer for whom the worker works for at least the ordinary hours fixed in the fair work instrument.
3
Worker employed by 2 or more employers who works for one of those employers for at least the prescribed number of hours each week and to whom no fair work instrument is applicable.
The worker’s pre-injury average weekly earnings are to be calculated in accordance with Division 2 of Part 3 with reference to the work for the employer for whom the worker works for at least the prescribed number of hours.
4
Worker employed by 2 or more employers for at least the ordinary hours fixed in any applicable fair work instrument.
The worker’s pre-injury average weekly earnings are to be calculated in accordance with Division 2 of Part 3 with reference to the work which yields the higher weekly ordinary earnings.
5
Worker employed by 2 or more employers who works for one of those employers for at least the ordinary hours fixed in an applicable fair work instrument and works for another of those employers for at least the prescribed number of hours each week.
The worker’s pre-injury average weekly earnings are to be calculated in accordance with Division 2 of Part 3 with reference to the work which yields the higher weekly ordinary earnings.
6
Worker employed by 2 or more employers for at least the prescribed number of hours each week and to whom no fair work instrument is applicable.
The worker’s pre-injury average weekly earnings are to be calculated in accordance with Division 2 of Part 3 with reference to the work which yields the higher weekly ordinary earnings.
7
Worker employed by 2 or more employers who sustains an injury that results in an incapacity to work for one or more of those employers but not for all those employers.
The worker’s pre-injury average weekly earnings are to be calculated in accordance with Division 2 of Part 3 with reference to earnings from work with all the employers.
8
Worker employed by 2 or more employers in circumstances other than those described in the preceding provisions of this Schedule.
The worker’s pre-injury average weekly earnings are the worker’s average ordinary earnings expressed as an amount per hour for all work carried out by the worker for all employers multiplied by: (a) the prescribed number of hours per week, or (b) the total of the worker’s ordinary hours per week, whichever is the lesser.
Clause 7 of the Workers Compensation Regulation 2016 (the Regulations) provides:
“For the purposes of the prescribed number of hours wherever referred to in Schedule 3 to the 1987 Act, 38 hours is prescribed.”
EMPLOYER’S SUBMISSIONS
Ground No 1
The employer submits that the worker was found to have been employed permanently by it, for 38 hours per week (reasons at [17]). It refers to the reasons at [127], where the Arbitrator said:
“While the letter from Access refers to Mr Salam being employed ‘full time’ as a cleaner, there is no evidence as to the hours or days he worked.”
The letter was one from Access dated 9 May 2016. It described the period of the worker’s employment with Access (24 February 2014 to December 2014). It said that he was a “Full Time Cleaner”, and referred to his duties and the Award pursuant to which he was employed. The employer submits that the Arbitrator:
“… accepted the ‘full-time’ reference and hence constructively found the respondent worker was working at least 38 hours per week. Accordingly the worker was employed by both it and Access for the ‘prescribed number of hours’ (38) per week.”
The employer submits that the application of Item 7 is dependent on “injury that results in an incapacity to work for one or more of those employers but not for all those employers”. The Arbitrator found that injury with the employer resulted in “partial incapacity to work for the [employer] and Access” (employer’s emphasis) (reasons at [136]). This was inconsistent with determining PIAWE by reference to the “earnings from work with all the employers” based on Item 7. The Arbitrator found the worker was incapacitated for work with both the employer and Access, this “should have excluded Item 7 as a basis for calculating the weekly entitlement”.
Ground No 2
This ground asserts that the applicable Item was Item 5 of Sch 3. This would require that the worker have worked “for at least the ordinary hours fixed in an applicable fair work instrument” with one employer, and with another employer “for at least the prescribed number of hours”.
The employer refers to the “Employer Injury Claim Form” attached to its Reply. The date of the document is unclear on the copy used (it may be 26 June 2015), it refers to the date of injury “8.12.14” and has a “Received” stamp from “Employers Mutual” dated 29 June 2015. The “Employer’s Declaration” is signed by Vince Mandile, Assistant Store Manager. A question in the document asks “What is the title of the award or agreement?” The letters “WEA” have been inserted. The employer submits:
“‘WEA’ … is a reference to ‘Woolworths Enterprise Agreement’, a crude name given to the actual title ‘Woolworths National Supermarket Agreement 2012’. It is common knowledge that all Supermarket employees of the [employer] are subject to this agreement, hence, it is submitted for the purposes of Item 5 that the [employer] is the employer for whom the worker worked for ‘at least the ordinary hours fixed in an applicable fair work instrument.”
The employer submits that there is no evidence about a fair work instrument relevant to Access. As the worker worked for Access full-time, it was an employer for whom he worked “at least the prescribed number of hours”. The requirements of Item 5 are satisfied, and PIAWE should be calculated “by reference to the work which yields the higher weekly ordinary earnings” (in this instance, that with the employer of $939.46).
In the alternative, the employer submits that the appropriate measure of the PIAWE is Item 8, which applies where a worker’s situation does not fall within “those described in the preceding provisions of this Schedule”. The measure in that instance is the worker’s average hourly rate for his work with all employers, multiplied by the prescribed number of hours, or the worker’s ordinary hours per week, whichever is the lesser.
Ground No 3
The employer submits that the PIAWE calculation based on Item 7 involved error, and proposes calculations of the PIAWE applying either Item 5 or Item 8.
WORKER’S SUBMISSIONS
Ground No 1
The worker submits that the employer’s submissions dealing with Item 7 involve reading words into the descriptor in Column 1, so that it reads:
“Worker employed by 2 or more employers who sustains an injury that results in an incapacity to work whether total or partial for one or more of those employers but not for all those employers.” (the words submitted as being read in are in italics)
The Arbitrator’s finding was of partial incapacity with each of the employer and Access. This did not constitute an incapacity to work “for all those employers”. The worker submits that the approach contended for by the employer “would be unduly restricted”, a worker who had “managed to work two jobs would be ‘harshly’ restricted because of his ability to earn”.
Grounds No 2 & 3
The worker submits that these grounds involve points not taken at the arbitration hearing, and the employer should not be able to raise them on appeal. They raise matters of “‘new evidence’ or interpretation of evidence”.
GROUND NO 1
The Arbitrator made findings that the worker was employed by both the employer and Access at the date of injury, and that he was partially incapacitated for work with each of them (see [7] above). The employer on appeal refers to the Employer Injury Claim Form, which has short form reference to an applicable fair work instrument. This was identified in a letter from the employer’s solicitors to the solicitors for the worker dated 21 November 2016, which is attached to the Application. The letter refers to the “WEA” mentioned in the claim form, and states that this “is the Woolworths National Supermarket Agreement 2012. It is often referred to as the EBA.” Although the Arbitrator did not refer to this in his reasons, it appears to be uncontroversial evidence of the fair work instrument pursuant to which the worker was employed. The worker’s statement describes him as working “full time for about 38 hours per week”, which is consistent with the “Employer Injury Claim Form”. Again, this is uncontroversial.
The Arbitrator’s reasons at [121]–[122] noted a submission by the employer’s counsel at the arbitration hearing:
“121. In respect of the calculation of Mr Salam’s pre-injury earnings, Mr Gaitanis submits the higher of the average weekly earnings of the two employers (the respondent) should be used for calculating the rate of weekly payments pursuant to s 37 of the 1987 [Act], and that the average weekly earnings of the two employers should not be combined.
122. Mr Gaitanis did not develop his submission why the higher PIAWE of the two employers should be used to calculate the rate of weekly payments of compensation.”
This is consistent with a submission that the worker’s PIAWE should not be calculated on the basis of Item 7, but on the basis of one of Items 4, 5 or 6 of Sch 3 (each of which includes the reference to “the higher weekly ordinary earnings” in Col 3). Item 4 could not be applicable, as uncontroversial evidence established that employment with one of the employers, Access, was pursuant to an Award, not an applicable fair work instrument. Item 6 could not be applicable, as uncontroversial evidence established that the worker was employed by one of the employers (Woolworths) pursuant to a fair work instrument. The submission could only be understood, consistent with the evidence, as one that Item 5 of Sch 3 applied.
Can the finding, that Item 7 of Sch 3 applies, stand with the balance of the Arbitrator’s findings? The descriptor in Col 2 at Item 7 has the following elements:
(a) the worker employed by 2 or more employers;
(b) the injury resulting in incapacity for work for one or more of the employers, and
(c) the injury not resulting in incapacity for work for all of the employers.
On the Arbitrator’s findings, the first two of the elements are satisfied (reasons at [136] and [139]). On the face of it, the third element is not satisfied, as there is a finding of partial incapacity to work for both the employer and Access, which is “all of the employers”.
At the arbitration hearing it was, at one point, submitted that the worker may have “a capacity to do light work such as Access”, although there was “an incapacity to do his pre-injury employment” (T25.1–3). His counsel submitted:
“… and if he hadn’t have been injured he would’ve done –able to do both jobs. Now, in his restricted capacity he may be able to do one.” (T25.4–6)
There was then an exchange:
“ARBITRATOR: So you’re asking me to make an award on the basis of current [sic, concurrent] employment and the [worker] is partially incapacitated, not only for employment with the respondent but also the employment .. (not transcribable 0:37:02) .. Access and the reason he left Access was because of his bilateral shoulder condition?
MR PARKER: That’s correct. That’s the best I can do.” (T25.30–26.3)
The worker’s submissions on appeal say that the Arbitrator:
“… did not find that the [worker] had an incapacity to work ‘at all for one or more of those employers’ but that there was a partial incapacity to work for the [employer] and the concurrent employer” (emphasis added).
The difficulty with the submission is that neither of the second or third elements of Item 7 of Sch 3 involve “incapacity to work at all for one or more of those employers”. Rather, they involve “an incapacity to work”.
Section 33 of the 1987 Act provides:
“33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
There is nothing in the descriptor in Col 2, applying to Item 7, which suggests that satisfaction of any of the elements is based on either total or partial incapacity, to the exclusion of the other. The phrase is “incapacity to work”, which can involve either total or partial incapacity.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 the plurality at [47] said (excluding references):
“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.”
The worker submits that Sch 3 would operate “harshly” if the employer’s submission is accepted. The above construction is consistent with the clear meaning of the text of Sch 3. Its operation, in circumstances such as the present, is less advantageous for a worker than the provisions which applied prior to commencement of the Workers Compensation Legislation Amendment Act 2012 (see the former s 43(1)(b) of the 1987 Act which dealt with ‘concurrent employment’). As was observed by the plurality in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [29] “… the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially”.
The clear meaning of the text, in Col 2 of Item 7, is that application of the Item requires, as an element, that the injury did not result in incapacity to work for all of the employers. The effect of the Arbitrator’s finding at [136] of the reasons is that the third of the elements required, for Item 7 to have application in the circumstances, cannot be established. Contrary to the worker’s submission, this does not involve reading words into the provision.
It follows that Ground No 1 is made out. The effect of the above is that it is necessary that the Arbitrator’s decision regarding quantification of the weekly entitlement be revoked.
GROUNDS NOS 2 AND 3
The employer, in grounds 2 and 3, argues that Item 5 or Item 8 of Sch 3 should be applied in the circumstances. These effectively are arguments going to the appropriate orders to be made, if the matter is re-determined on appeal. The worker submits that these matters were not raised at the arbitration hearing. For reasons which follow, the worker’s application to extend time to appeal pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules) fails. There is no other challenge to the balance of the Arbitrator’s decision. The orders to be made on disposition of the appeal appear below, in the discussion dealing with re-determination.
GROUNDS OF APPEAL – NO A2-6636/16
This appeal by the worker was registered on 19 May 2017, outside the period prescribed in s 352(4) of the 1998 Act. It requires an extension of time pursuant to r 16.2(12) of the Rules if it is to proceed. The ground raised in the worker’s appeal is:
(a) The Arbitrator erred in finding that the worker had a current ability to earn of $600 per week.
APPLICATION TO EXTEND TIME IN NO A2-6636/16
The worker says that his argument on this appeal is that the figure assessed, as his ‘current ability to earn’ of $600 per week, involved error, and should have been a lower figure of $330 per week. The Arbitrator assessed the worker’s weekly entitlement on the basis of PIAWE calculated at $1,850.46. The worker’s weekly entitlement was awarded at a rate of $880.36. The worker submits that, based on that weekly award, it was “arguable” that the compensation at issue on his appeal would not have satisfied the thresholds in s 352(3) of the 1998 Act. However, the employer’s appeal, if successful, would reduce the weekly award, so that the error alleged by the worker, if accepted, more readily satisfies the threshold in s 352(3).
The employer submits that the worker’s submissions do not explicitly state the worker’s concerns about the thresholds in s 352(5), and do not adequately address the reasons for delay. The “supposed threshold issue would not have prevented him from filing an appeal within the required timeframe”.
The worker lodged an Amended Application to Appeal on 7 June 2017 (the Amended Appeal). In addition to the matters previously raised, the worker attached to this document three payslips from Cogninet Australia Pty Ltd, addressed to the worker, covering the periods 14 to 27 October 2015, and 11 November 2015 to 11 December 2015. These payslips showed an hourly rate of $24.81. The Arbitrator had assessed the worker’s ability to earn at “15 to 20 hours per week in suitable employment such as the education and accountancy industries”, at $600 per week (reasons at [158]). The worker submits that over the period covered by these payslips he worked an average of 15 hours per week at $24.81 per hour. This is less hours and a lower rate than that assessed by the Arbitrator as his ‘ability to earn’.
The worker submits that he should have leave to rely on the payslips as fresh evidence:
“The new evidence was not provided and/or available at the arbitration hearing as the appellant worker was unable to locate the original payslips nor obtain copies from Cogninet as this was a very short period of employment and his contact had left the company.”
The employer submits that the worker should not have leave to rely on the fresh evidence, as there is no “full and satisfactory explanation as to why they [the payslips] were not available on the CON/ARB date. The [worker] has not explained why he was able to procure the payslips now, when he was not able to procure them at the necessary time.”
The worker requires leave to extend time in the Appeal lodged on 19 May 2017, leave to rely on an Amended Appeal lodged on 30 May 2017, and leave to rely on fresh evidence attached to the Amended Appeal.
The application to extend time is governed by r 16.2(12) of the Rules which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The presence of ‘exceptional circumstances’ is to be “considered by the Presidential member as a matter within jurisdiction as opposed to a precondition”: Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing) at [8]. The meaning of ‘exceptional circumstances’ is considered in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (Yacoub) (per Campbell JA at [66], Tobias JA and Handley AJA agreeing). These principles have been frequently applied in the Commission, in Presidential decisions dealing with ‘exceptional circumstances’. It is appropriate, in exercising the discretion, to have regard to the principles discussed in the judgment of McHugh J in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at [2]. These were summarised by Roche DP in Allen v Roads and Maritime Services [2015] NSWWCCPD 39 (Allen) at [31] as involving the need to have regard to the following:
“(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 Basten JA (Beazley P and Leeming JA agreeing) at [9] said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”
Roche DP applied this passage in Allen.
The worker’s appeal was registered a little more than three weeks out of time. The sole basis put forward by the worker, to explain the delay, is that it was arguable that his appeal would not pass the threshold in s 352(3) of the 1998 Act. The variation to the weekly entitlement, sought in the worker’s appeal, substantially exceeds the threshold sum of $5,000 referred to in s 352(3)(a). The worker’s submissions do not contain any calculations going to the threshold in s 352(3)(b). The employer’s submissions on the point describe the worker’s “concerns” about the threshold as “not explicitly stated”. The employer submits that “the supposed threshold issue would not have prevented him from filing an appeal”.
Section 352(3)(b) requires that the amount of compensation at issue on the appeal be at least 20 per cent of the amount awarded in the decision appealed against. The amount of compensation at issue in the worker’s appeal, based on the weekly award as entered by the Arbitrator, was about 30 per cent of the weekly compensation awarded. If one has regard to the award for medical expenses and the sum specifically claimed for surgery in the Application, this percentage reduces to about 25 per cent. There are no specific submissions made by the worker, which identify how the threshold in s 352(3) represented an impediment to commencing the appeal in time.
The worker submits that the employer’s appeal had the effect that, if it succeeded, the worker’s position and threshold issues would be “materially altered”. The employer’s appeal was registered on 20 April 2017. According to the Certificate of Service, it was served on the worker’s solicitors by DX on 1 May 2017. The worker’s appeal was initially registered on 19 May 2017.
The extent of the worker’s delay in lodging his appeal is moderate, something greater than three weeks. The delay is not adequately explained. The worker has not explained the basis on which there was doubt regarding the threshold in s 352(3). This is the sole reason given for the delay. To the extent to which the position changed when the employer’s appeal was put on, the period between service of the employer’s appeal, and lodgement of the worker’s appeal, is unexplained. It would have taken some time to consider and draft grounds and submissions, and take instructions. How much is not known. Part B of the worker’s Application to Appeal, which contains the “Grounds of Appeal and Submissions in Support”, is relatively brief, maybe a little more than a half page. The extent of the delay, and the reasons for the delay, are not adequately explained.
The presence of ‘exceptional circumstances’ is not a “precondition” to an extension, but is something which the Presidential member is required to consider: Bryce at [8]. The worker’s submissions do not deal with whether ‘exceptional circumstances’ are present. Doubt in the minds of those advising the worker, about whether the thresholds in s 352(3) are met, does not, in my view, constitute ‘exceptional circumstances’: see the discussion in Yacoub at [66].
The employer does not argue that it is prejudiced by the worker’s delay in lodging the appeal.
It is necessary to have regard to the prospects of success of the worker’s proposed appeal. It is appropriate, in considering this, to consider the worker’s application to rely on fresh evidence, in his Amended Application to Appeal lodged on 7 June 2017. The fresh evidence consists of pay slips described at [51] above.
Fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The operation of s 352(6) was dealt with in CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 (Strickland). Barrett JA (Macfarlan JA agreeing) at [27] and [31] identified the two threshold questions raised by the sub-section, “as alternatives”. “The first goes to the issue of availability in advance of the proceedings”.
The parties’ submissions dealing with admissibility of the fresh evidence, relevant to the first limb in Strickland, are set out at [52]–[53] above.
The relevant test in s 352(6) is that “the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned”. Assuming (in the worker’s favour) the existence of a factual basis for the worker’s submission, the test is not satisfied. The worker submits that he was unable to locate the original payslips. There is no indication of when he sought to do so, what he did, or with what result. There is no indication of why they could not be located. It is necessary, to satisfy the test, to establish that the evidence could not reasonably have been obtained at an appropriate earlier time. To simply assert that the worker’s contact had left the company does not establish this. There is no indication of what the worker did to obtain them, or why they could not be obtained. Reasonable steps would include contacting the company, by letter or in person, and seeking copies. There is no indication that this was done, or with what result. As the employer submits, the worker has been able to obtain the payslips subsequently, through means that are not identified.
The worker cannot, on his submission, establish a basis to admit the fresh evidence applying the first limb of the test in Strickland.
The second limb of the test is that “failure to grant leave would cause substantial injustice in the case”. In Strickland Barrett JA at [31] said:
“The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
There was evidence before the Arbitrator from the worker, in his statement dated 13 July 2016, relating to his earnings with Cogninet. The worker described that company as a “specialised service provider in education industry”. The worker stated that he worked for Cogninet “for about 20 hours per week from on or about 14 October 2015 to December 2015”, earning $3,969. The Arbitrator referred to this evidence in his reasons at [152].
The Arbitrator made a finding in which he accepted the employer’s submission that the worker “has a current work capacity to work in suitable employment” (reasons at [149]). He found the worker was “partially incapacitated for work as a result of the injury” (reasons at [150]).
The weekly award made by the Arbitrator was pursuant to s 37(3)(a) of the 1987 Act. Section 37(3) provides:
“The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during 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.”
Section 35(1) of the 1987 Act relevantly provides:
“E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,
(b) the workers current weekly earnings.”
The Arbitrator dealt with the quantification of ‘E’ at [149]–[158] of his reasons. He referred to the worker’s qualifications, including a history that he had a “degree in engineering overseas” and a Masters degree in Accounting since coming to Australia. He had worked “teaching/tutoring accounting” at the Sydney campus of the University of Southern Queensland, in addition to the work with Cogninet. The Arbitrator said that he accepted the opinions of Dr Bodel (qualified by the worker’s solicitors) and Dr Herald (a treating orthopaedic surgeon), that the worker had a capacity to perform “suitable duties of 15 to 20 hours per week since 12 December 2015” (reasons at [136]–[137]). The Arbitrator at [158] made the finding:
“I find Mr Salam has a current capacity to work 15 to 20 hours per week in suitable employment such as the education and accountancy industries and that his ability to earn is $600 per week.”
This figure of $600 per week constituted ‘E’ for the purpose of the equation in s 37(3)(a). It represents the Arbitrator’s finding of the worker’s ability to earn in suitable employment. Although it was informed by the Arbitrator’s consideration of the worker’s employment history and educational background, the Arbitrator did not purport to base it on precise reference to the worker’s actual earnings, with Cogninet or elsewhere.
In J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 Barwick CJ at [10] said:
“However the value of described work in the labour market is a matter well within the general knowledge and experience of this Commission. Consequently in this case, the Commission would be able to assess what wages ought to be paid for the respondent’s labour both before and after the injury.”
The Compensation Court of New South Wales was a specialist tribunal, taken to have knowledge of the labour market and wages: Cowra Shire Council v Quinn (1996) 13 NSWCCR 175 per Handley JA (Meagher and Cole JJA agreeing) at 179D. In Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385 Rolfe AJA (Kirby P and Priestley JA agreeing) at [23] said:
“The Compensation Court is a specialised tribunal the judges of which are well qualified by their experience and knowledge of matters in the labour market and wages paid to make the type of assessment Burke CCJ was called on to make in this case. This has been recognised by appellate courts for many years. In Australian Iron & Steel Pty Limited v Elliott (1966) 67 SR (NSW) 87, Sugerman JA said words, which are equally applicable to this case, at 94:
‘The parties do not seem to have raised the question of quantum, or to have placed before his Honour any evidence on which he might determine either the amount of the “difference” mentioned in s11(1), or the amount proper to be awarded under the circumstances of the case, being content, apparently, to leave all questions of quantum to his Honour’s decision in reliance on the fund of information as to the conditions of employment and rates of pay which the Commission should be taken to possess...’
In J & H Timbers Pty Limited v Nelson [1972] HCA 12; (1972) 126 CLR 625, Barwick CJ referred to similar considerations: see at 632–633.”
These principles similarly apply in the Commission, which is a specialist tribunal, taken to possess such specialist knowledge: Goktas v Goodyear Australia Pty Limited [2007] NSWWCCPD 1 at [32], Forests NSW v Hancock No.2 [2007] NSWWCCPD 191 at [76], Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 at [75].
In assessing ‘E’ the Arbitrator was required to apply either the current weekly earnings or the ability to earn, whichever was greater: s 35(1) of the 1987 Act. It is apparent that he applied the ability to earn, consistent with his fact finding at [158]. This was not simply based on the worker’s earnings with Cogninet, it was based on the Arbitrator’s assessment of the worker’s ability to earn in the “education or accountancy industries” for 15 to 20 hours per week. Attaching a monetary value to this capacity was consistent with the Arbitrator’s status as a member of a specialist tribunal. This result would not be altered by the fresh evidence, of the worker’s actual earnings and hours with Cogninet between 14 October 2015 and 11 December 2015.
It follows from the above that the worker’s application to rely on fresh evidence, in the Amended Appeal, could not succeed. The fresh evidence would satisfy neither of the limbs in Strickland. It additionally follows that the worker would not be granted leave to rely on the Amended Appeal, as this would be futile. The worker’s prospects of success in his appeal should be evaluated without reference to the fresh evidence.
The worker’s appeal in No A2-6636/16 relates to the Arbitrator’s finding that his ability to earn in suitable employment was $600 per week. The issues raised are:
(a) The Arbitrator did not give reasons for his findings that the worker could work 20 hours per week, as opposed to 15, in suitable employment.
(b) The Arbitrator did not give reasons for concluding that suitable employment would give the worker an ability to earn $30 per hour.
(c) There was no application to cross-examine the worker, so it was not put to him that he could work 20 hours per week, or earn $30 per hour in suitable employment.
Dealing with the first of these propositions, the Arbitrator did not make a finding that the worker was capable, in suitable employment, of working 20 hours per week, as opposed to 15. The Arbitrator’s finding was that the worker had a capacity to work “15 to 20 hours per week in suitable employment such as the education and accountancy industries” (reasons at [158]).
The Arbitrator gave reasons, for this finding on the hours of which the worker was capable. He said that he accepted the opinion of Dr Bodel, the orthopaedic surgeon qualified by the worker’s solicitors (reasons at [151]). In his report dated 11 January 2017 Dr Bodel commented on work capacity:
“This is a difficult question. He has quite severe pain and stiffness in both shoulders. He is not fit for work doing night fill work or any lifting, pushing or pulling or use of the arms overhead. He may theoretically be able to tolerate part-time very light duty work at waist level no more than 15 to 20 hours per week.”
Dealing with the second proposition, the Arbitrator did not specifically conclude that suitable employment would give an ability to earn of $30 per hour. He found an ability to earn of $600 per week, associated with an ability to work 15 to 20 hours per week, in the education or accountancy industries. This was associated with evidence, referred to by the Arbitrator, that the worker had an engineering degree from overseas, a Masters degree in Accounting since coming to Australia, work in the education industry working for Cogninet, and work teaching accounting at the Sydney campus of the University of Southern Queensland. He was satisfied that the worker “has the requisite accountancy qualifications in Australia”. These factors were referred to in the reasons at [153]–[154], in the discussion which dealt with the finding regarding ‘ability to earn’. In considering the adequacy of reasons, the reasons should be read as a whole: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA.
For reasons given above at [78]–[80], the Commission is a specialist tribunal, with knowledge which equips it to make such assessments. The Arbitrator’s reasons for his findings on the worker’s ability to earn were adequate.
The third of the worker’s propositions is without merit. There is no right to cross-examine in the Commission: Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 at [37]. Dealing with the rule in Browne v Dunn in the context of the Commission, in New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69 Campbell JA (Giles JA and Handley AJA agreeing), after reviewing the authorities, at [81] said:
“The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.”
The evidence which formed the basis for the Arbitrator’s findings on ‘ability to earn’ was in the arena and known to the parties, prior to the arbitration hearing. The primary medical evidence accepted by the Arbitrator in this regard was that of Dr Bodel, whose opinion was relied on in the worker’s case. The worker’s educational and employment background were referred to in his statement, and medical histories. Neither party sought leave to cross-examine or to adduce oral evidence. The worker has advanced no reasoned argument, for the proposition that appealable error was associated with the fact that he was not cross-examined about his ability to earn.
It follows from the above that the worker’s appeal does not have reasonable prospects of success.
Thus, delay is not adequately explained, ‘exceptional circumstances’ are not established, and the appeal lacks reasonable prospects of success. The factors do not favour the extension of time for the bringing of the worker’s appeal. The appropriate order is that the application to extend time be refused.
RE-DETERMINATION
The remaining issue is a narrow one. Section 352(7) of the 1998 Act provides that a new decision may be made in the place of that revoked. It is appropriate that the issue of the weekly entitlement be re-determined on appeal.
The worker submitted that the PIAWE should be determined on the basis of Item 7 of Sch 3 (T27.30–29.6). Having concluded that the circumstances of the matter do not fall within Item 7 of Sch 3, it is necessary to determine which Item they do fall into. Uncontroversial evidence establishes that the worker was employed by one employer (Woolworths) for at least the ordinary hours fixed in an applicable fair work instrument. He was not employed by Access pursuant to a fair work instrument, he was employed pursuant to an award. He was not aged under 21, an apprentice, or working under a contract of employment falling within Item 1(c) of Sch 3. The evidence does not suggest his employment fell into the factual situation described in Item 9. The effect of this is that Items 1, 3, 4, 6, and 9 do not apply. I have concluded that Item 7 does not apply in the circumstances. The only available categorisations that could apply are those in Items 2, 5 and 8. Item 8 is a ‘catch all’, that applies if a worker is “employed by 2 or more employers in circumstances other than those described in the preceding provisions of this Schedule”.
The descriptors in Col 2, applying to Items 2 and 5, have the following elements:
(a) the worker is employed by 2 or more employers (Items 2 and 5);
(b) the worker works for one of those employers for at least the ordinary hours fixed in an applicable fair work instrument (Items 2 and 5), and
(c) the worker works for another of those employers for at least the “prescribed number of hours each week” (Item 5).
The worker clearly satisfies the first two of the elements. He worked for two employers (the employer and Access), and he worked for the employer for at least the ordinary hours fixed in an applicable fair work instrument. Thus, if the worker worked for Access for at least 38 hours per week, his PIAWE fell to be calculated pursuant to Item 5. If he worked for Access for less than 38 hours per week, his PIAWE fell to be calculated pursuant to Item 2.
The letter from Access dated 9 May 2016, attached to the worker’s Application, stated that the worker was “employed as a Full Time Cleaner … under the Cleaning Services Award 2010, CSE1 Classification”. As the Arbitrator observed at [127] of his reasons, “there is no evidence as to the hours or days he worked”. For reasons given at [33]–[34] above, the employer’s submission at the arbitration hearing should be understood as one that Item 5 applied. The employer continues to make that submission on the appeal. It does not submit that Item 2 applies. It is a reasonable inference that full-time employment with Access involved work for at least 38 hours per week.
The effect of applying Item 5 is that the PIAWE is to be calculated by reference to “the work which yields the higher weekly ordinary earnings”. That is the work with the employer, the figure for which was agreed at $939.46 (work with Access was $911 per week).
If, contrary to what appears above, one concludes as a matter of fact that the worker’s work for Access was not at least 38 hours per week, Item 2 would apply. The PIAWE would then be calculated by reference to “the work for the employer for whom the worker works for at least the ordinary hours fixed in the fair work instrument”. That is the employer (Woolworths), and the appropriate PIAWE figure, applying Item 2, is the same as if Item 5 applied, $939.46. The other possibility raised in submissions was that Item 8 applied. Logically, either Item 2 or Item 5 must apply, so it is difficult to see any valid basis for concluding that “circumstances other than those described in the preceding provisions” of Sch 3 existed. Item 8 would, in any event, yield a lower figure than Item 5.
On balance, the appropriate factual finding (and it is consistent with the employer’s submission) is that Item 5 of Sch 3 applies, and the relevant PIAWE figure is $939.46. Applying the equation in s 37(3) of the 1987 Act, this yields a weekly entitlement of $151.57 (80 per cent of the PIAWE less the found ability to earn of $600). The arithmetical correctness of this calculation was not challenged by the worker on the appeal.
A FURTHER MATTER
Identification of the ‘Class of worker at time of injury’, for the purposes of Items 2, 3, 4, 5 and 6, involves reference to the worker’s hours of employment, having regard to whether s/he worked for at least the prescribed number of hours and/or at least the applicable hours fixed in any applicable fair work instrument, in one or more of the employments. Whether there is any applicable fair work instrument, and the hours worked pursuant to that instrument or otherwise, are fundamental to identifying an appropriate Item in Sch 3. It is important that parties specifically address the issues raised by Sch 3 of the 1987 Act, in the evidence lodged in matters where there are “2 or more employers”.
DECISION
The worker’s application to extend time pursuant to r 16.2(12) of the Rules is refused.
As regards the Arbitrator’s decision dated 28 March 2017:
(a) Paragraph 1 is amended to substitute the figure $151.57 for the figure $880.36.
(b) Paragraph 2 is confirmed.
Michael Snell
Deputy President
17 August 2017
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