Woolworths Ltd v Sterrett - [2012] NSWWCCPD 24

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Woolworths Ltd v Sterrett

Details

AGLC: Woolworths Ltd v Sterrett [2012] NSWWCCPD 24
Case: [2012] NSWWCCPD 24
Decision Date: 4 May 2012

CaseChat Overview and Summary

Woolworths Ltd, an employer, sought judicial review of a determination made by an arbitrator in a workers' compensation matter. The worker, Mr Sterrett, claimed compensation for an injury sustained while working overtime. The dispute centred on whether the overtime worked by Mr Sterrett was covered under section 42(6) of the Workers Compensation Act 1987, which provides for compensation in respect of work-related injuries. The case was heard in the Supreme Court of Queensland.

The legal issue before the court was whether the statutory provision applied to overtime regularly worked by the employee. The court had to interpret the scope of section 42(6) and determine if it covered the specific circumstances of Mr Sterrett's injury, which occurred during overtime. This required an analysis of the language of the statute and the nature of the work that Mr Sterrett performed. The court also considered whether the employer had any defences under the Act or common law that could negate the worker's claim.

The Supreme Court found that the Arbitrator's interpretation of section 42(6) was correct and that it applied to the overtime worked by Mr Sterrett. The court emphasised that the provision was intended to provide a broad protection for employees who suffer injuries in the course of their employment, including during overtime. The employer's argument that the statute only covered "unusual" overtime was rejected. The court held that the statutory protection extended to all work done by an employee as part of their employment, regardless of whether it was regular or irregular overtime. As a result, the Arbitrator's determination was confirmed, and the employer was ordered to pay the worker's costs of the appeal.

The court's decision reinforced the importance of providing adequate compensation for workers injured in the course of their employment, including during overtime. The final orders of the court confirmed the Arbitrator's determination and required the employer to pay the worker's costs of the appeal. This outcome underscored the broad application of section 42(6) and the need for employers to ensure that they comply with their obligations under the Workers Compensation Act.

Orders

Orders of the court

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

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.