Woolworths Ltd v Sterrett
[2012] NSWWCCPD 24
•4 May 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Woolworths Ltd v Sterrett [2012] NSWWCCPD 24 | ||||
| APPELLANT: | Woolworths Ltd | ||||
| RESPONDENT: | Graham Sterrett | ||||
| INSURER: | Self-insured | ||||
| FILE NUMBER: | A1-7045/11 | ||||
| ARBITRATOR: | Mr R Caddies | ||||
| DATE OF ARBITRATOR’S DECISION: | 8 February 2012 | ||||
| DATE OF APPEAL DECISION: | 4 May 2012 | ||||
| SUBJECT MATTER OF DECISION: | Application of s 42(6) of the Workers Compensation Act 1987 to overtime regularly worked | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Bartier Perry | |||
| Respondent: | Everingham Solomons Solicitors | ||||
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination made in the Certificate of Determination dated 8 February 2012 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal. | ||||
BACKGROUND
The respondent worker, Mr Graham Sterrett, was employed by the appellant employer, Woolworths Ltd, at the BWS Liquor Store in Taree.
On 4 April 2010, Mr Sterrett was lifting cases of beer in the course of his employment, when he suffered an injury to his back. There is no dispute that the injury took place in the circumstances described by the worker and that he is totally incapacitated as a result of it.
The dispute concerns the quantification of his entitlement to weekly compensation pursuant to s 36 and s 37 of the Workers Compensation Act 1987 (the 1987 Act), and the calculation of his “current weekly wage rate”. The worker was employed on a part-time basis to work 25 “core hours” per week, being five hours per day Wednesday to Sunday. However, he routinely worked 32–33 hours, which included working on Sundays, for which he was paid at a higher hourly rate. It is accepted he earned an average of $601.24 per week.
The issue before the Arbitrator concerned whether the additional hours, that is, those hours worked in excess of the core hours, should be excluded from the calculation of the worker’s “current weekly wage rate” under s 42(6) of the 1987 Act, or whether the correct application of s 42(6) required that the uplift in the hourly rate for work regularly performed on Sundays is to be excluded from the calculation of the current weekly wage rate.
On 17 August 2011, Mr Sterrett filed an Application to Resolve a Dispute in the Commission. He claimed $601.24 per week from 27 July 2010 to date and continuing as a result of an injury to his lumbar spine sustained in the circumstances described above.
On 7 September 2011, the appellant, Woolworths Ltd, filed a Reply to the Application to Resolve a Dispute. The Reply failed to articulate the precise nature of the dispute, but it is clear from the documents attached to the Reply that the issues are as I have identified them.
On 16 November 2011, a Commission Arbitrator conducted an arbitration hearing. The Arbitrator called on the parties to provide written submissions and adjourned the matter. Subsequently, both parties filed written submissions.
On 8 February 2012, the Arbitrator issued a Certificate of Determination and Statement of Reasons. The Arbitrator held that all hours regularly worked by the worker, not just the contracted core hours, were to be included for the purpose of calculating the current weekly wage rate, subject to an adjustment that excised from the calculation an uplift in the hourly rate for Sunday work. He found that worker’s current weekly wage rate was $580.39 per week as at the date of injury.
The Certificate of Determination dated 8 February 2012 is in the following terms:
“1. Current weekly wage rate in respect of the applicant is $580.39 per week at commencement of relevant incapacity.
2.Award for the applicant at the rate of $580.39 per week under section 36 of the Workers Compensation Act 1987 from 17 July 2010 to 28 November 2010 and from 13 December 2010 to 12 January 2011.
3.Award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 (in respect of the applicant with a dependent spouse) as follows:
(a)$516.90 per week from 13 January 2011 to 17 January 2011;
(b)$527.40 per week from 10 May 2011 to 30 September 2011, and
(c)$536.40 per week from 1 October 2011 to date and continuing.
4.Credit is given to the respondent for payments made.
5.The respondent is to pay the applicant’s costs.
6.This is a matter of some legal and factual complexity and is distinguishable from circumstances set forth in Woolworths Limited v Lister [2004] NSWCA 292 and accordingly, I certify the matter as complex and order an uplift of 25 per cent (both parties).”
The employer has challenged the Arbitrator’s findings and determination.
ISSUES IN DISPUTE
The issues in dispute raised on this appeal as set out in the grounds of appeal are whether the Arbitrator erred in:
(a) determining that the respondent worker’s current weekly wage rate was $580.39 per week as at the date of injury;
(b) failing to find that the current weekly wage rate was $453.43, reflecting 25 hours per week at an hourly rate of $18.1371 per hour.
ON THE PAPERS REVIEW
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.”
Both parties have submitted that the appeal can be decided solely on the basis of the written Application and Notice of Opposition.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
Section 352(3) is in the following terms:
“There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
Mr Sterrett concedes that the monetary threshold in s 352(3)(a) has been met. However, he submits that the s 352(3)(b) threshold has not been met and therefore the appeal cannot proceed. He submits that the compensation at issue on the appeal is $7.87 per week, being the difference between the Sunday rate ($26 per hour) and a normal rate ($18.13 per hour). That sum, multiplied by seven, the number of hours in dispute, equals $55.09, which is only nine per cent of $580.39, the amount awarded at [2] of the Certificate of Determination.
Woolworths submits that the s 352(3)(a) threshold had been met. It made no submission on the s 352(3)(b) threshold.
Woolworths challenges the Arbitrator’s finding that the worker’s current weekly wage rate was in the sum of $580.39 per week. The relief sought by the appellant is that the Arbitrator’s finding be revoked and substituted with a finding that the worker’s current weekly wage rate as at the date of injury was $453.43. Thus, the amount of compensation at issue in the appeal is $126.96 per week.
Twenty per cent of the amount awarded by the Arbitrator ($580.39) equals $116.78 per week. Therefore, the amount of compensation at issue on the appeal is at least 20 per cent of the amount awarded in the decision appealed against, and the provisions of s 352(3)(b) are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
THE ARBITRATOR’S FINDING AND REASONS
The parties agreed that the Woolworths Supermarkets – NSW/ACT Agreement 2007 (the 2007 Agreement) under which Mr Sterrett was employed was an award fixing a rate of pay for the purposes of s 42 of the 1987 Act. It will be necessary to refer to the specific terms of the 2007 Agreement in due course.
The Arbitrator found, on the evidence before him, that, although the worker was contracted to work a minimum of 25 hours per week, in practice, he usually worked 32 or 33 hours per week and earned on average $601.24 per week. Mr Sterrett worked five of the core 25 hours on Sundays, for which he was paid at the rate of $26 per hour.
There is no dispute that the weekly rate of pay for working 25 hours per week was $453.43 at the time of injury (which is an average hourly rate of $18.13).
The Arbitrator found that, pursuant to the 2007 Agreement, a part-time worker is entitled to work “additional hours” in excess of the core hours. Part-time employees are only entitled to overtime for work in excess of 38 hours in any one week.
The Arbitrator rejected the argument that the work performed on Sundays constituted either shift work or overtime, such that it should be excluded from consideration by s 42(6) of the 1987 Act.
At [30] of the Reasons for his decision, the Arbitrator calculated the worker’s current weekly wage rate in respect of the work being performed by him immediately before being incapacitated by multiplying 32 (the number of hours per week the Arbitrator found the worker “more likely than not” worked) by the hourly rate of $18.13, to reach a total of $580.39. I have proceeded on the assumption that the Arbitrator’s reference at [30] to an hourly rate of $15.67 is a typographical error.
The Arbitrator found that, as the current weekly wage rate of $580.39 was lower than the average weekly earnings of $601.24, s 42(4) did not arise for consideration.
Applying s 37(1)(a) of the 1987 Act, because 90% of the workers average weekly earnings (of $601.24) equals $541, the worker is entitled to an award at the maximum statutory rate for a worker with a dependent spouse.
It was conceded that the applicant has a dependent spouse and that he is totally incapacitated.
LEGISLATION
Section 36 of the 1987 Act provides as follows:
“(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate.
(2) In this section:
current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.”
Sections 37(1) and 37(2) of the 1987 Act provide as follows:
“(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be:
(a) 90 per cent of the worker’s average weekly earnings, except that:
(i)the payment shall not exceed $235.20 per week,
(ii)in the case of a worker who is over 21 years of age at the time of payment—the payment shall not be less than $187.10 per week, and
(iii)in the case of a worker whose average weekly earnings do not exceed $170 per week—the payment shall be 100 per cent of those earnings or $153, whichever is the lesser amount,
(b) in addition, $62 per week in respect of:
(i)a dependent wife or dependent husband of the worker, or
(ii)if there is no dependent wife or dependent husband at any time during which weekly payments are payable—any one dependent de facto spouse or other family member of the worker, and
(c) in addition:
(i)in respect of the dependent children of the worker, the following amounts per week:
No of dependent children Additional amount per week 1 dependent child $44.30 2 dependent children $99.10 3 dependent children $164.16 4 dependent children $230.90 5 or more dependent children
$230.90 plus $66.60 for each child in excess of 4
(ii)if there are no dependent children at any time during which weekly payments are payable—in respect of the dependent brothers and sisters of the worker, the same amounts per week as are payable under subparagraph (i) in respect of dependent children of the worker.
(1A) Despite subsection (1), for a maximum of 26 weeks the weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (whether the period is during or after, or partly during and partly after, the first 26 weeks of incapacity) is the amount specified in section 36. This subsection applies even if the injury concerned resulted in any period of partial incapacity for work in respect of which the worker received or receives weekly payments of compensation.
(2) The total weekly payment under subsection (1) shall not exceed the worker’s current weekly wage rate determined from time to time in accordance with section 42.
(3) …”
Section 42(1)(a) of the 1987 Act provides:
“(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:
(a)was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))—is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
(b)…”
Section 42(4) of the 1987 Act provides:
“(4) Subject to subsections (6) and (7), if the amount of a part-time worker’s current weekly wage rate, as determined under subsection (1), exceeds the worker’s average weekly earnings, a reference in this Division to that worker’s current weekly wage rate is a reference to those average weekly earnings.”
Section 42(6) of the 1987 Act provides:
“(6) In determining a worker’s current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker:
(a)in respect of shift work, overtime or other penalty rates,
(b)under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or
(c)to cover special expenses incurred by the worker because of the nature of the worker’s employment,
is, except in so far as the regulations otherwise provide, to be disregarded.”
THE 2007 AGREEMENT
There is no dispute that Mr Sterrett was employed pursuant to the 2007 Agreement as a Retail Employee Grade 2. The relevant extracts from the 2007 Agreement include the following:
“4.2 Full-time Employee
Means an employee engaged to work an average of 38 ordinary hours per week over a 4-week period, pursuant to clause 15, Hours and Rostering Principles.
4.3Part-time Employee
Means a weekly employee who works a regular roster with an average of between 10 and 36 ordinary hours per week.”
“4.22 Core Hours
Is the number of fixed ordinary hours that the Company and part-time employee have agreed will be worked by the employee at each anniversary year.”
“5.5 Part-time Employees
5.5.1A Part-time employee may be engaged to work a regular number of rostered hours to a maximum of 20 days in any 4-week cycle with a maximum of 38 hours in any one rostered week. These hours shall not be less than 40 hours per 4 week cycle nor more than 144 hours in a 4 week cycle.
5.5.2A part time employee may, by mutual agreement, work up to a maximum of 48 hours in any week during key operational periods of December, January and the week prior to and the week after Easter Sunday, before incurring overtime, provided that the employee does not exceed 144 hours in their four week cycle (5.5.1).
5.5.3The minimum daily engagement shall be 3 hours.
5.5.4The maximum daily engagement shall be 9 hours (exclusive of meal breaks) except where an employee may work 11 hours pursuant to subclauses 15.5.2.3 and 15.5.2.4.
5.5.5The maximum number of starts in any week shall be 5 except where an employee works 6 days, pursuant to subclause 15.5.2.1.
5.5.6Part-time employees shall be paid an hourly rate equal to the appropriate weekly rate divided by 38. The provisions of this agreement where relevant shall apply to part-time employees on a pro rata basis.
5.5.7Additional Hours
5.5.7.1Notwithstanding the above provisions, a part-time employee may be offered Additional Hours, and accept such hours on a voluntary basis. Such hours are in addition to a part-time employee’s core rostered hours.
The working of part-time Additional Hours is subject to the following provisions:
(a) Additional Hours are offered on a voluntary basis in addition to a part-time employee’s core rostered hours, up to a maximum of 38 hours in any week.
(b) Additional Hours shall be paid at the appropriate part-time ordinary hours rate of pay, inclusive of any additional loadings applicable to such hours.
(c) The working of Additional Hours operates subject to clauses: 15, Hours and Rostering; 16, Loadings for Certain Ordinary Hours; 17, Overtime; 19, Meal Breaks and Rest Pauses; 20, Meal Allowance; 12.6, Two Engagements in the one day; 36, Superannuation, and all other relevant clauses.
(d) Additional Hours shall not be worked in excess of daily maximum hours or days elsewhere provided in this Agreement (as contained in clauses 4.3, 5.5 and 15.5.2) or in excess of an average of 36 hours per week over a four week cycle, without the payment of overtime.
(e) The leave provisions of this Agreement shall apply to part-time employees on a pro-rata basis.
(f) Where the number of rostered hours varies during any anniversary year (including where an employee transfers from part-time to full-time employment and vice versa), the employee’s Annual Leave entitlements shall be calculated weekly. All other entitlements shall be calculated on the average number of ordinary hours worked during the anniversary year.
(g) In the event that a part time employee is not able to work an agreed additional shift on account of illness/injury (sick leave), they are entitled to access Personal Leave in accordance with clause 22, Personal Leave.
15.5.2Part-time employees
15.5.2.1All part-time employees shall be rostered their ordinary hours of work on any 5 days of the week, Monday to Sunday inclusive. Provided that the ordinary hours may be worked on 6 shifts in 1 week if in the following week ordinary hours are worked on not more than 4 shifts.
15.5.2.2An employee who works ordinary hours on a Sunday shall upon request be given 3 consecutive days off which shall include Saturday and Sunday, once every 4 weeks. By mutual agreement alternative arrangements may apply.
15.5.2.3The minimum number of ordinary hours which may be worked on any one day shall be 3 hours. The maximum number of ordinary hours which may be worked on any one day shall be 11 hours.
15.5.2.4There shall not be more than one long day in any week. A long day is defined as a day exceeding 9 ordinary hours of work. Provided that by mutual agreement additional long days may apply.
15.5.2.5At least once every 2 weeks an employee shall be granted a minimum of 2 consecutive days off, except where an employee requests an alternative roster arrangement.
15.5.2.6No part-time employee working more than 4 hours per day shall be required to work in excess of 7 consecutive days in a fortnight, provided that by mutual agreement 8 consecutive days may be worked, or 9 consecutive days in Freestanding Liquor and Woolworths Liquor.
15.5.2.7A part-time employee working not more than 4 hours on any day, shall not be required to work in excess of 8 consecutive days in a fortnight provided that 9 consecutive days may be worked by mutual agreement.
15.5.2.8The maximum number of ordinary hours an employee may be rostered to work in any week shall be 38.”
“16. LOADINGS FOR CERTAIN ORDINARY HOURS
The loadings prescribed below shall be paid for such ordinary hours worked:
16.1 Monday to Friday 30% – from midnight to 5.00 am.
16.2 Saturday 30% – from midnight Friday to 5.00 am Saturday.
16.3 Saturday 25% – from 10.00 pm to midnight Saturday.
16.4 Sunday 100% – from midnight Saturday to 6.00 am Sunday.
16.5 Sunday 50% – from 6.00 am Sunday to 10.00 pm Sunday.
16.6 Sunday 75% – from 10.00 pm Sunday to midnight Sunday.
Subject to the relevant legislation, the loadings prescribed in this clause shall not be taken into consideration in calculating any payment for overtime or public holidays, or for any period of personal leave, or long service leave.
17. OVERTIME
17.1 Entitlement
An employee shall be paid overtime for all work as follows in excess of:
17.1.1An average of 38 hours per week for full-time employees in accordance with the roster provisions.
17.1.2An average of 5 days per week in accordance with the roster provisions subject to clause 5.6.2.
17.1.3In excess of 9 hours on any one day. Provided that on one day per week up to 11 hours may be worked without the payment of overtime. By mutual agreement additional days of up to 11 ordinary hours may be worked without the payment of overtime.
17.1.4An average of 36 hours per week for a part-time employee.
17.1.538 hours in any one week for part-time and casual employees.
17.1.656 hours in any individual week for a full-time employee within a 4 week cycle of 152 ordinary hours.
17.2 Rate of Pay
The rate of overtime shall be time and one-half for the first 2 hours on any one day and at the rate of double time thereafter. All overtime worked on a Sunday shall be paid at the rate of double time with a minimum payment for 3 hours.”
THE CLAIM FORM
The worker completed a claim form on 15 July 2010. The relevant section of the claim form, including the questions asked and the workers answers (shown in italics), is as follows:
“How many standard hours did you work each week before being injured?
Exclude overtime25 hrs
What were your usual working hours?
Wed–Sun 5 hrs per day
What was your usual pre-tax hourly rate?
Exclude overtime and shift allowances$18.31
What were your usual pre-tax weekly earnings?
Exclude overtime and shift allowances$500 approx
Please provide details of any overtime or shift work
Weekly shift allowance $Weekly overtime Sunday 5 hrs $26 per hr.”
SUBMISSIONS
The appellant submits that the Arbitrator was in error in adopting 32 hours per week for the purpose of a calculation under s 42(1). It submits that Mr Sterrett was employed to work on a part-time basis for 25 hours per week. The worker’s claim form identifies “standard” hours at 25 hours per week, being five hours per day Wednesday through to Sunday. The claim form also identifies weekly overtime on Sundays of five hours at a rate of $26 per hour. It is the appellant’s contention that the Sunday work (not just the higher hourly rate for Sunday work) should be excluded from the calculation of the current weekly wage rate by reason of s 42(6).
The appellant submits that the Arbitrator’s error at [28] of the Reasons was to find that, until Mr Sterrett worked more than 38 hours per week, he would not be undertaking overtime within the meaning of s 42(6). The appellant submits that this is inconsistent with the award and the facts. The appellant further submits that the Arbitrator’s decision leads to an anomalous outcome whereby, by failing to distinguish between full-time and part-time workers, the compensation payable is the same.
The appellant submits that the Arbitrator ought to have calculated the current weekly wage rate by having regard only to the 25 hours per week that the worker was contracted to work. This approach, it is submitted, is consistent with the treatment of part-time employees under the award. The appellant submits that the Arbitrator’s decision should be revoked and a finding substituted that the worker’s current weekly wage rate as at the date of injury is $453.43.
Mr Sterrett supports the approach taken by the Arbitrator. He submits that, accepting that he worked 32 hours per week regularly, the Sunday work could not be regarded as overtime because overtime is not payable under the 2007 Agreement until in excess of 38 hours per week are worked. Mr Sterrett submits that the Arbitrator applied s 42 correctly by multiplying the base rate of pay, $18.13 per hour, by the number of hours worked, namely, 32, to come to a total of $580.39 per week. In approaching the calculation in that way, the Arbitrator has excluded remuneration for shift work, overtime, penalty rates or other rates in excess of ordinary rates, as required by s 42(6).
Mr Sterrett submits that the 2007 Agreement does not support the appellant’s submission that overtime arises after the respondent has worked more than his contracted core hours. He submits that, pursuant to cl 17 of the 2007 Agreement, an employee does not work overtime until he works in excess of:
(a) an average of 36 hours per week, or
(b) more than 38 hours in any one week.
Mr Sterrett further submits that the proper construction of s 42(6) of the 1987 Act is such that the only amount of the weekly income to be disregarded by the Arbitrator is the amount by which the penalty or overtime rate exceeds the ordinary rate fixed by the award. It is submitted that the correct approach is to calculate the worker’s current weekly wage rate by reference to the number of hours he worked “immediately before being incapacitated”, in accordance with s 42(1) of the 1987 Act.
DISCUSSION
The 2007 Agreement under which Mr Sterrett was employed provided at cl 4.2.2 that he work a number of “core hours”, that is, a number of fixed ordinary hours that the company and a part-time employee have agreed would be worked.
In addition to the core hours, the 2007 Agreement provided that a part-time employee may be offered additional hours and accept such hours on a voluntary basis.
The 2007 Agreement provided at cl 5.7.1(b):
“Additional Hours shall be paid at the appropriate part-time ordinary hours rate of pay, inclusive of any additional loadings applicable to such hours.”
The 2007 Agreement provided at cl 16 for loadings for certain ordinary hours, which included a 50 per cent loading for working Sundays.
The 2007 Agreement stipulated at cl 17 that overtime was payable in respect of part-time employees for all work in excess of an average of 36 hours per week or in excess of nine hours on any one day. Payment for overtime is paid at the rate of time-and-one-half for the first two hours on any one day and at the rate of double time thereafter:
“All overtime work on a Sunday shall be paid at the rate of double time with a minimum payment for three hours.” (cl 17.2)
The unchallenged evidence is that Mr Sterrett regularly worked 32 to 33 hours per week. This included a regular Sunday shift. Payment for the Sunday shift was at $26 per hour, which is consistent with a 50 per cent loading in addition to his ordinary rate of pay in accordance with cl 16. This was not consistent with the work being paid as overtime, which would have resulted in an hourly rate in the order of $27 for the first two hours and $36 per hour thereafter, that is, time-and-a-half for the first two hours and double time thereafter (cl 17.2).
Woolworths’ submission is based in part on a claim form completed by Mr Sterrett on 15 July 2010, the relevant section of which is reproduced at [36]. Woolworths submits that the worker’s answers in reference to that part of the claim form dealing with overtime support its submission that the Sunday shift was worked as overtime.
It can readily be seen that the worker’s answers to the questions asked on the claim form are ambiguous. Mr Sterrett included the Sunday work in response to the question concerning usual working hours and also in response to the question concerning overtime.
The claim form is consistent with the worker’s evidence, namely, that he worked core hours of 25 hours per week, including five hours on Sunday, for which he was paid at $26 per hour, which was slightly higher than the “usual pre-tax hourly rate”, which the worker identified as $18.31.
The worker’s treatment of his regular Sunday shift as overtime in the claim form is not conclusive evidence that it was overtime. The objective evidence does not support a finding that the Sunday work was overtime for the following reasons. First, the hourly rate for the Sunday work ($26) for the entire shift is inconsistent with payment at the overtime rate, which is time-and-a-half for the first two hours and double time thereafter, in accordance with cl 17.2 of the 2007 Agreement.
Second, such a finding is inconsistent with the worker’s pay slips. The pay slip referred to at [60] of the Reply, which deals with the period 27 December 2009 to 30 December 2009, demonstrates that the worker worked 30 hours in that week. Notwithstanding the fact that the worker worked more than the core hours in that week, there is no indication that he was paid overtime.
Third, the 2007 Agreement specifically provides, at cl 5.5.7.1(b), that any additional hours worked are to be remunerated at the “ordinary hours rate of pay”, subject to any loading payable. They are not remunerated as overtime.
If there was objective evidence to demonstrate that the worker was being paid regular overtime, I would have expected that Woolworths would have produced it. Apart from the documents to which I have referred, there is no other objective evidence to support its contention that the Sunday work was worked as overtime. For these reasons, I reject the submission that the Arbitrator erred by not treating the Sunday work as overtime.
Woolworths’ submission that the Sunday work should not be included for the purposes of calculating the worker’s current weekly wage rate ignores the requirement of s 42(1)(a) to have regard to “the work being performed by the worker immediately before being incapacitated”. There is no dispute that the work actually being performed by the worker immediately before being incapacitated was in the order of 32 hours per week, as found by the Arbitrator.
In Lismore City Council v Garland 26 NSWLR 542, Kirby P (as his Honour then was) considered the legislative history and the policy considerations that led to the introduction of s 42(6) in order to determine if an industry allowance regularly paid as part of the worker’s usual remuneration should be included in the calculation of the worker’s current weekly wage rate. He said (at 551):
“That policy I take to be that the worker should, during such incapacity, be paid the ordinary rate which would have been paid as wages had there been no compensable injury”.
The task required by s 42(6) is to exclude from the calculation any amounts paid or payable to the worker in respect of “shift work, overtime or other penalty rates” (emphasis added) under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work he or she performed. Thus, in my view, the requirement of s 42(6) is to exclude from the calculation the loading (the penalty rate) payable to Mr Sterrett for the Sunday work, that is, to adjust the rate so that any additional loading in excess of the ordinary rate is excluded, but it does not require, as Woolworths submits, that the work itself be disregarded in circumstance where the evidence establishes that the work performed on Sundays was part of the worker’s regular working week and was not “overtime”.
The appellant submits that the Arbitrator erred by finding that, until Mr Sterrett worked more than 38 hours per week, he would not be undertaking overtime within the meaning of s 42(6). The appellant submits that the finding is inconsistent with the award and the facts. I disagree. The finding, in my view, is perfectly consistent with both the 2007 Agreement and the facts. The 2007 Agreement contemplated that workers would be given the opportunity of working core hours, additional hours and overtime hours. It is clear, in my view, that the worker regularly worked core and additional hours. There is no reference in any of the pay slips that have been tendered to the worker having been paid overtime. The earnings that he received for the Sunday work are inconsistent with the work being classified as overtime for the reasons I have identified and for the reasons given by the Arbitrator, namely, that the worker did not work in excess of an average of 36 hours per week as required by cl 17 of the 2007 Agreement to attract the payment of overtime.
The appellant’s submission that the calculation of the worker’s current weekly wage rate should have regard only to the core hours worked, namely, 25 hours per week, to the exclusion of all work regularly worked on Sundays, is unsupported by any reasoned argument or authority. In my view, s 42(6) does not require that the work regularly undertaken on Sundays be disregarded. The subsection requires that the “penalty rates” the work attracted be disregarded for the calculation of the worker’s current weekly wage rate. In other words, it is the loading that is to be disregarded, not the work itself. This is the approach the Arbitrator adopted and, in my view, this is the correct application of s 42(6).
CONCLUSION
In circumstances where a worker is totally incapacitated and is entitled to be compensated pursuant to s 36 and/or s 37 of the 1987 Act, the worker’s current weekly wage rate must be ascertained for the purposes of quantifying his or her entitlements. In determining the worker’s current weekly wage rate, full regard must be had to the provisions of s 42 of the 1987 Act. Section 42(6) provides that, in determining the worker’s current weekly wage rate, any amount paid or payable to the worker in respect of shift work, overtime or other penalty rates is to be disregarded.
The evidence established that the worker regularly worked on Sundays. The Sunday work attracted a penalty rate in addition to the worker’s normal hourly rate of earning. In the circumstances of this case, the application of s 42(6) required that the penalty rates paid for the Sunday work be excluded from the calculation of the worker’s current weekly wage rate, but it did not require that the work undertaken on Sundays be disregarded completely.
DECISION
The Arbitrator’s determination made in the Certificate of Determination dated 8 February 2012 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal.
Judge Keating
President
4 May 2012
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE