Workers Rehabilitation & Compensation Corporation v Harle

[1994] SASC 4023

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(1), PERRY(2) AND MULLIGHAN(3) JJ

CWDS
Workers' compensation - computation of average weekly earnings - Appeal by Workers' Rehabilitation and Compensation Corporation against decision of the Workers' Compensation Appeal Tribunal which in turn had upheld a finding by a review officer that there was no overtime component in the average weekly earnings of the worker who was employed as a casual welder - "notional weekly earnings" for the purposes of computation of weekly payments exclude "any component of the worker's earnings attributable to overtime" except where overtime is worked according to a regular and established pattern - the worker in question worked on a particular job for 12 hours a day, 7 days a week, but suffered an injury before the job was completed - held that the earnings did not include any component attributable to overtime - "overtime" means time spent working beyond a worker's normal hours of work, and despite the length of the hours worked, all of them were, having regard to the particular contract of employment, normal - observations as to the relevance of award provisions in characterising work as "overtime".

Workers' Rehabilitation and Compensation Act (1986) s4(8), s3(l) and s53(4).

State Transport Authority v Ettridge Workers Compensation Appeal Tribunal Reports (1990) Vol 2 Part 2 at 264 and Kezich v Leighton Contractors Pty Ltd
(1974) 131 CLR 362, considered.

HRNG ADELAIDE, 4 March 1994 #DATE 10:5:1994

Counsel for appellant:     Mr D M Quick QC with him
   Ms J. Grundy

Solicitors for appellant:    Thomsons

Counsel for respondent:     Mr T M Mcrae

Solicitors for respondent: Stanley and Partners

ORDER
Appeal dismissed.

JUDGE1 LEGOE ACJ Leave to appeal in this matter was granted by a judge on the sole ground that the Workers Compensation Tribunal "erred in law in finding that overtime in s.4(8) of the Act means time spent working beyond a worker's regular hours of work and payment therefore and not as overtime is defined in any award governing the worker's contract of employment".

2. In my opinion, "overtime" as defined in any award governing the worker's contract of employment was totally irrelevant to the issue of law which the Tribunal had to decide on the undisputed facts as found by the Review Officer and accepted by the Tribunal. The issue of law turns on the proper interpretation of s.4(8)(a) of the Workers Rehabilitation and Compensation Act
(1986). That section reads:
    "For the purposes of determining the average weekly earnings
    of a worker - (a) any component of the worker's earnings
    attributable to overtime will be disregarded ..."

3. First, it is to be noted that the sub-section is now worded differently to that which appeared at the time of the earlier decisions of this court as to whether overtime should be disregarded from the computation of the average weekly earnings; see Francese v The Corporation of the City of Adelaide (1989) 51 SASR 522, in particular at 526 per King CJ; and Ettridge v State Transport Authority; WorkCover Corporation (Intervenor) (1992) 163 LSJS 153. The undisputed facts as found by the review officer and adopted by the Tribunal were briefly: 1. That the worker had been employed on a casual basis by a firm called Rexco which was in the business of labour hire. 2. In March 1991 the worker was directed by Rexco to perform maintenance work on the MV Accolade II for Adelaide Brighton Cement. 3. That contract of casual employment required the worker who agreed to work from 6 p.m. to 6 a.m., seven days a week, including Easter, until the maintenance work was completed. 4. The worker was a boiler maker in the labour hire industry. 5. Rexco employed the worker for specific jobs in respect of which Rexco had contracts with different clients to provide the services of its employees, in this case, the respondent, James Harle. 6. The worker was engaged to perform boiler making work on and from 19 March 1991, for the hours specified above for seven days a week until the Accolade was ready. 7. The worker was, as found by the Review Officer and accepted by the Tribunal, a "true" casual in the industrial sense. 8. The job on which the worker was working when injured involved an engagement by him to work continuous 12 hour shifts.

4. In the course of the various appeals in this matter the facts and legal issues relevant to the claim were canvassed. The Corporation (the appellant herein) was unable to identify what the worker's ordinary hours of work were. Furthermore, the appellant conceded that the pay records described some of the worker's earnings as overtime, whereas in fact the remuneration in question was by way of shift penalty or loading. The appellant further conceded that it would be unreliable in any event to simply adopt what the employer describes as overtime. What in law is the "component of the worker's earnings attributable to overtime"?

5. As Mullighan J said in Workers Rehabilitation and Compensation Corporation v James (1991) 56 SASR 414 at 419, after discussing the change made by the 1986 Workers Rehabilitation and Compensation Act to the former provisions of the 1971 Workers Compensation Act:
    "The Act provides that a disability is compensable if it
    arises from employment: s.30(1). ... A compensable
    disability entitles the worker to income maintenance where
it results in incapacity for work: s.35. That section
    provides for the principles to be applied in determining the
    amount of weekly payments."

6. Further, the Act introduced the concept of "notional weekly earnings" which are defined in s.3(1) to mean:
    "(a) the worker's average earnings."

7. Average weekly earnings are defined in s.3(1) to mean the average weekly earnings determined in accordance with s.4. The basic concept contained in s.4 are that the average weekly earnings of a disabled worker is the average amount that that worker "could reasonably be 4 expected to have earned for a week's work if the worker had not been disabled", see sub-s.(1). As King CJ observed in Francese v The Corporation of the City of Adelaide (supra) at 526:
    "... the concept of average weekly earnings which are the
    measure of the compensation which is payable, is directed to
    the future and not to the past. It is directed to 'the
    average amount which the worker could reasonably be expected
    to have earned for a week's work if the worker had not been
disabled' - s.4(1). The average weekly earnings during the
    previous 12 months are relevant only as a factor which may
    be taken into account for the purpose of determining what
    could be expected to be earned during the period of
disability - s.4(2). The underlying notion appears to be
    that of 'income maintenance', as the heading to Division IV,
in which s.35 appears, suggests, that is to say the
    maintenance during disability of the income which the worker
    would reasonably have expected to earn during the period of
    disability. The overtime excluded from average weekly
    earnings other than 'overtime worked in accordance with a
    regular and established pattern' is therefore overtime which
    could reasonably be expected to have been worked during the
    period of disability if there had been no accident. Past
    overtime other than that worked in accordance with a regular
    and established pattern would also have to be excluded in
    the computation of past average weekly earnings in so far as
    they are taken into account in estimating future weekly
    earnings."

8. At the time of the decision in Francese (supra) and Ettridge (supra), sub-s.(8) read: "For the purposes of determining the average weekly earnings of a worker, any prescribed allowance shall be disregarded." "Prescribed allowance" was defined in s.3, sub-s.(c) of which read:
    "By way of overtime, other than amounts paid in respect of
    overtime worked in accordance with a regular and established
    pattern."

9. Sub-section (8) now reads:
    "For the purposes of determining the average weekly earnings
    of a worker - (a) any component of the worker's earnings,
    attributable to overtime will be disregarded unless ... "

10. Further provisions in the sub-section relate to overtime worked in accordance with a regular or established pattern, so that the pattern be substantially uniform as to the number of overtime hours worked, and the worker would have continued to work overtime in accordance with the established pattern if he or she had not been disabled.

11. The issue in this case is whether there was any component of the worker's earnings which could be said to be attributable to overtime for the purpose of determining this worker's average weekly earnings so as to assess the future income maintenance after the disability. In my opinion, that is the plain and ordinary meaning to be applied to the particular facts as found by the Tribunal. Conclusion. In my judgment, the short answer and only answer which the Tribunal could give to this question was that provided by the Tribunal when it concluded that -
    "... this worker was not engaged in working overtime at all.
    His regular or usual hours of work were those which he
    negotiated as part of his contract of employment. In the
    instance of the Accolade job that was from 6 pm to 6 am, 7
    days per week."

12. In calculating the rate of remuneration for those negotiated hours, the parties have made reference to the 6 award prescriptions concerning casual employees, hours of work and overtime. But the use of rates specified in the award for that purpose does not establish that the worker was working overtime for the purposes of this Act. In my opinion, the Tribunal correctly interpreted and applied the provisions of s.4(8) of the Act, when on the facts as found and on the provisions of this particular worker's contract, the Tribunal concluded that there was no component of the worker's earnings attributable to overtime.

13. Further, I agree with the Tribunal that the statement of Mason J (as he then was) in Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362 at 368, recognised the very problem which arose in this case when his Honour said:
    "Special problems arise in the case of a casual or shift
    worker whose hours of work are remunerated otherwise than by
    reference to the ordinary rate of pay. Assuming that such a
    worker intended to continue casual or shift work it could
    not be said that, if he were not incapacitated, he would
    have worked any 'ordinary hours' in the sense which the
    respondent gives to that expression."

14. Accordingly, I am of the opinion that the appellant has failed to establish any error of law in the conclusion reached by the Tribunal on the only issue to be decided by this court. I would dismiss the appeal.

JUDGE2 PERRY J The Workers Rehabilitation and Compensation Corporation ("the Corporation") appeals to this Court by leave granted pursuant to s.100 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") against a decision of the Workers Compensation Appeal Tribunal ("the Tribunal"). The appeal is limited to a question of law (s.100(3) of the Act).

2. The essential question raised by the appeal is as to the meaning to be attributed to the word "overtime" where it appears in s.4(8) of the Act, that section being concerned with the computation of the average weekly earnings of a disabled worker.

3. The relevant facts fall within a small compass, and are not the subject of dispute.

4. The respondent is a qualified boilermaker. He was employed from time to time by Rexco Pty Ltd ("Rexco") on a casual basis. Rexco carries on a business of hiring out labour. In the financial year commencing 1 July 1990 until 27 March 1991, the respondent was employed on a casual basis not only by Rexco, but also by other companies including Complete Scaffold Services Pty Ltd, Western Personnel Services Pty Ltd, and AIR Installation Services. The respondent's casual employment with those employers was not continuous but was interrupted by periods during which he did not work.

5. On 19 March 1991, the respondent began performing maintenance work on a vessel MV Accolade II ("the Accolade"), having been contracted by Rexco to perform the work for Adelaide Brighton Cement Ltd. The terms of the contract between Rexco and Adelaide Brighton Cement pursuant to which the respondent's services were supplied, were not proved in evidence. However, it is common ground that the respondent agreed to work from 6 pm to 6 am, seven days per week, including Easter, until the job was completed.

6. Before work on the Accolade was completed, on 27 March 1991, during the course of the employment, the respondent sustained a compensable disability. As a result, he was in receipt of weekly payments of income maintenance until 24 September 1991.

7. Work on the Accolade, at least work in which the respondent, had it not been for his injury, would have participated, concluded on 10 April 1991. In the week prior to his injury, the respondent earned $2,556.80 gross. A question arose as to the quantum of the weekly payments to be paid to the respondent during the period of his incapacity for work, pursuant to s.35 of the Act. It appears that the respondent was, within the meaning of that section, totally incapacitated for work during the period in question, that is to say, until 24 September 1991. It follows that during that period he was entitled to weekly payments equal to his "notional weekly earnings" within the meaning of s.35(1)(a)(i) of the Act.

8. "Notional weekly earnings" are relevantly defined in s.3(1) of the Act to mean:
    "(a) The worker's average weekly earnings; or (b) .....
"Average weekly earnings" are in turn defined in s.3(1)
    to mean: "The worker's average weekly earnings determined in
accordance with s.4".

9. The relevant provisions of s.4 of the Act are:
    "(1) Subject to this section, the average weekly earnings of
    a disabled worker are the average amount that the worker
    could reasonably be expected to have earned for a week's
    work if the worker had not been disabled.

(2) For the purpose of determining the average weekly
    earnings of a worker-
    (a) where the worker was, immediately before the relevant
    date, employed by more than one employer - aggregate
    earnings from all employment shall be taken into account;
    and
    (b) subject to subsection (3)-
     (i) the actual weekly earnings of the worker over a period
     of up to 12 months before the relevant date may be taken
     into account;
    and
     (ii) if by reason of the shortness of time during which
     the worker has been in employment, the terms of the
     worker's employment or for any other reason, it is not
     possible to arrive at a fair average, the worker's average
     weekly earnings may be determined by reference
     to the average weekly amount being earned by other persons
     in the same employment who perform similar work at the
     same grade as the worker or, if there is no person so
     employed, by other persons in the same class of employment
     who perform similar work at the same grade as the worker.

(3) Where a worker is a contractor rather than an employee,
    the worker's average weekly earnings shall be determined by
    reference to the rate of pay that the worker would have
    received if the worker had been working as an employee and,
    if there is an award or industrial agreement applicable to
    the class and grade of work in which the worker was engaged,
    the worker's average weekly earnings shall be determined by
    reference to that award or industrial agreement.

(4) ...

(5) ...

(6) ...

(7) Notwithstanding the foregoing provisions of this
    section -
    (a) where a disabled worker's remuneration was, at the
    relevant date, covered by an award or industrial agreement,
    the worker's average weekly earnings shall not be less than
    the weekly wage to which the worker was then entitled under
    the award or industrial agreement;
    (b) if, but for this paragraph, the average weekly earnings
    of a worker (not being a self-employed worker) would be
    less than the prescribed amount, the average weekly earnings
    shall be fixed at the prescribed amount;
    (c) the average weekly earnings of a worker shall in no case
    be fixed at more than twice State average weekly earnings.

(8) For the purposes of determining the average weekly
    earnings of a worker -
    (a) any component of the worker's earnings attributable to
    overtime will be disregarded unless-
     (i) the worker worked overtime in accordance with a
     regular and established pattern;
     (ii) the pattern was substantially uniform as to the
     number of hours of overtime worked;
    and
     (iii) the worker would have continued to work overtime in
     accordance with the established pattern if he or she had
     not been disabled.
    (ab) any contribution paid or payable by an employer to a
    superannuation scheme for the benefit of the worker will be
    disregarded;
    and
    (b) any prescribed allowances will be disregarded.

(9) In this section -
    (a) ...
    and
    (b) a reference to State average weekly earnings is a
    reference to the amount last published before the relevant
    date by the Commonwealth Statistician as an estimate of
    Average Weekly Earnings for Ordinary Hours of Work for each
    Full-time Employed Male Unit in this State."

10. Determination of the quantum of the weekly payment to be made by way of income maintenance was first made by the Corporation in the discharge of its functions pursuant to s.53(4) of the Act. Although the date of that determination is not disclosed in the evidence, in a letter to the respondent's solicitors dated 22 July 1991 the Corporation confirmed a previous written notification (not tendered in evidence) which had been given. In the letter the Corporation states:
    "WorkCover took over Income Maintenance payments as
    requested by the Employer from the 24th of April, 1991. They
    stated in writing that the above worker's rate of pay at the
    time of the injury was $15.04 an hour for a 38 hour week.
    Therefore we calculated the worker's wage at $571.52 per
    week and this is the rate we are currently paying."

11. The amount of $571.52 mentioned in that letter is the rate of $15.04 per hour multiplied by 38. Of course, the respondent was in fact working 84 hours a week and not 38 hours. However, the Corporation excluded from its calculation all hours worked by the respondent beyond 38 hours per week on the basis that the excluded hours constituted "overtime" within the meaning of s.4 of the Act.

12. The respondent was dissatisfied with the determination of the appellant, and applied pursuant to s.95 of the Act for a review of the decision.

13. The respondent was successful in his application for review. In the course of his written determination, published on 31 March 1992, the review officer made the following findings:
    "I find on the basis of Mr Harle's engagement with Rexco Pty
    Ltd that he was a true casual at common law in the sense
    that he did not know at the completion of each particular
    job whether he would be engaged on any further occasions
    with the company. In addition to my finding that the
    employment was of a truly casual nature it is also relevant
    to note that on the job on which he was injured he was
    engaged to work continuous 12 hour shifts. On other jobs he
    was required to work whatever hours were required to
    complete the task at hand. Furthermore the Corporation was
    unable to identify what it said were the worker's ordinary
    hours of work. Mr Cannon (who appeared for the Corporation)
    conceded that the pay records as provided by the employer
    describe some of the worker's earnings as overtime when in
    fact that remuneration was by way of shift penalty or

    loading, and that it would be unreliable in any event to
    simply adopt what the employer describes as overtime. The
    word overtime, although not defined in the Act has been
    interpreted by the Tribunal headed by the Honourable Justice
    B.C. Stanley in the matter of Ettridge A62/1990 at page 6
    where His Honour stated that, 'Applying that reasoning to
    the question of the proper meaning to be attributed to the
    word overtime where it appears in the relevant definition in
    the Act it seems to us that the natural and ordinary meaning
    of the word "overtime" is the time spent working beyond a
    worker's regular hours of work and payment for that work.'

If that interpretation is applied to the hours of work
    carried out by Mr Harle it can be seen that none of the time
    he worked can be described as overtime as all work performed
    by Mr Harle can properly be described as his regular hours
    of work. What ever hours of work were required to be
    performed on any particular engagement were the regular
    hours for that job. In the worker's last period of
    employment with Rexco Pty Ltd his regular hours were 12 per
    day for seven days a week until the job was finished. I find
    therefore that no part of the earnings of Mr Harle received
    from Rexco Pty Ltd can properly be described as overtime
    within the meaning of the Act, and therefore no part of the
    worker's earnings should be disregarded on this ground in
    calculating the appropriate average weekly earnings. This
    conclusion equally applies with respect to the worker's
    casual employment with his other Labour Hire employers,
    based upon Mr Hodgston's evidence of the similarity of terms
    of engagement in this industry."

14. The review officer then went on to determine the level of average weekly earnings to be allowed for the purpose of quantifying the rate of weekly payments for the purposes of s.35(1) of the Act. In that regard, he found that the respondent would have continued to obtain work in the labour hire industry after the employment on the Accolade had come to an end. He accepted the evidence of the respondent that at the time he took up the job with Rexco to work on the Accolade, he had rejected two other job offers from Western Personnel Services and AIR Installation Services. He noted also that Rexco had offered further work to the respondent in August 1991, and that from September 1991 the respondent was able to secure employment interstate. He had regard also to the fact that the respondent had during the financial year preceding his incapacity been employed by at least three employers other than Rexco. He concluded that had the injury not occurred, the respondent:
    "...would have continued to have been employed in the labour
    hire industry on a casual basis with different employers".

15. Initially it was submitted to the review officer that the calculation of average weekly earnings should be based on the amount of $2,556.80 which the respondent had earned in the one week or so in which he had been employed on the Accolade. Eventually, however, the respondent's representative before the review officer did not press that argument, conceding that the earnings with respect to the Accolade job were "unrepresentative of the general level of remuneration" available to the respondent.

16. The review officer went on to calculate average weekly earnings on the basis which appears in the following passage from his determination:
    "I find that the correct approach to calculating the average
    weekly earnings that the worker could reasonably be expected
    to have earned for a week's work if the worker had not been
    disabled is to take into account actual weekly earnings that
    the worker would have received from his work in the labour
    hire industry including with Rexco Pty Ltd from the
    beginning of the 1990/91 financial year and including the
    work that he was certain to have performed on the MV
    Accolade II, which work concluded on 10 April, 1991. I have
    been provided with a copy of the income tax assessment of
    the worker for that financial year and that document reveals
    a gross taxable income of $32,639. Of that amount I have
    been supplied with group certificates that identify the sum
    of $24,591 as being earned by the worker from either Rexco
    Pty Ltd or other employers but excluding WorkCover and
    excluding prescribed allowances. In addition Mr Hodgston has
    provided wage details for a comparable boiler maker also
    engaged in the MV Accolade II job, Bruce Petersen, who was
    employed by Rexco Pty Ltd from 26 March until the week ended
    9 April, 1991, i.e. starting one day before the injury to Mr
    Harle occurred, and finishing one day before Mr Harle would
    have. Mr Petersen earned $7,042 excluding travel allowance
    in this period. I therefore find that the earnings of Mr
    Petersen would on the balance of probabilities have been the
    same as the earning of Mr Harle had he not been injured. By
    adding those gross earnings to the previous gross earnings
    of Mr Harle a total of $31,633 is obtained. Averaged over
    the 40 week period from 1 July 1990 until 10 April, 1991, a
    period of 40 weeks, I find that the worker's average weekly
    earnings would have been in the sum of $790.82 per week. I
    therefore find that $790.82 is the fairest average weekly
    earnings of the worker and that income maintenance should
    have been set at this amount."

17. The Corporation was dissatisfied with the decision of the review officer, and pursuant to s.97 of the Act brought an appeal to the Tribunal. The Tribunal dismissed the appeal. In doing so, the Tribunal adopted the definition of the word "overtime" to be found in Ettridge (supra), and went on to say:
    "In the instant matter the Tribunal adopts that definition of
    overtime and concludes that this worker was not engaged in working
    overtime at all. His regular or usual hours of work were those
    which he negotiated as part of his contract of employment. In the
    instance of the Accolade job that was from 6.00 pm to 6 am, 7 days
    per week. In calculating the rate of remuneration for those
    negotiated hours the praties may have made reference to the award
    prescriptions concerning casual employees, hours of work and
    overtime but the use of rates specified in the award for that
    purpose does not establish that the worker was working overtime
    for the purposes of this Act."

18. The Tribunal held that the review officer had reached the correct conclusion:
    "...that there was no overtime component in the worker's
    average weekly earnings in his casual employment with Rexco
    Pty Ltd or with the other employers by whom he was engaged
    in the 1990/1991 financial year."

19. Having reached that view, the Tribunal concluded that there was no error disclosed in the review officer's method of calculation of average weekly earnings, and in particular that the course taken by the review officer in calculating what the respondent stood to earn from the Accolade job if he had seen it through, aggregated with the past earnings for the financial year in question, averaged over the 40 week period until the completion of the Accolade job, was a formula which represented a fair average of what the worker could have expected to earn but for his disability, given the "particular pattern of his employment".

20. There is only one ground of appeal to this Court set out in the Notice of Appeal, that is:
    "1. The learned Tribunal erred in law in finding that
overtime in Section 4(8) of the Act means time spent working
    beyond a worker's regular hours of work and payment
    therefore and not as overtime is defined in any award
    governing the worker's contract of employment."

21. The words "any award governing the worker's contract of employment" give rise to a difficulty in the case. Mr Quick QC of counsel for the appellant conceded that neither party to the proceedings established that there was an award which applied to the respondent's employment in question, and if so, what award.

22. It appears from the transcript of the hearing before the Tribunal that an attempt was made at one stage by counsel for the Corporation to establish that the Commonwealth Metal Industry Award 1984 was of application. Later, counsel resiled from that contention and suggested rather that the State Metal Industry Award applied. Be that as it may, it is now conceded that no award was shown to be of application.

23. That, of course, does not conclude the matter. It is still necessary to give a meaning to the word "overtime" where it appears in s.4 of the Act. Even if the word "overtime" was the subject of a definition in an award shown to have been of application to the employment in question, that definition could not be determinative of the meaning to be attributed to the word in the Act. This was made clear by the High Court in Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362. That case concerned the Western Australian Workers Compensation Act 1912-1973 which provided, for the purposes of that Act, that "weekly earnings" meant:
    "...the amount of the ordinary wage or salary (including any
    over award payment) the worker would have received for the
    ordinary hours he would have worked if he were not
    incapacitated for work as a result of the injury".

24. The appellant in that case was engaged on the footing that he would normally work ten hours a day, six days a week, that is 60 hours per week. The "ordinary hours" of work under the relevant award, which was the Building Construction Employees and Builders Labourers Award 1973, were defined in the award to be 40 hours per week. Under the award, work beyond 40 hours was to be remunerated at overtime rates. The Workers Compensation Board held the appellant to be entitled to an award of $167.50, which was taken to be the amount which he ordinarily earned for a 60 hour week. This was varied on appeal to the Full Court of the Supreme Court of Western Australia, which held by a majority that the appellant was not entitled to an award at a higher rate than $91.40, which is the amount he would have received if he had worked 40 hours per week.

25. Gibbs J, with whom Stephens J agreed, observed (364):
    "The Act deals with the compensation payable to workers
    generally; it is not confined in its operation to any
    particular trade. Moreover, although most workers within the
meaning of the Act are no doubt employed in accordance with
    the terms of an industrial award, that is not a condition of
    the employer's liability to pay compensation. It would not
    be legitimate to construe the schedule by placing upon the
    words 'ordinary hours' the meaning which they may happen to
    bear in an industrial award governing employment of a
particular kind. The meaning of the Act cannot be determined
    by reference to the provisions of the Building Construction
    Employees and Builders' Labourers' Award, 1973. Indeed, even
    if it could be established that many industrial awards use
    the phrase 'ordinary hours' and that wherever it appears in
    any award it has the same meaning, that would not justify
    referring to a multitude of unrelated documents by different
    authors in an aid to the construction of a statute. What has
    to be determined is the meaning that those words have in the
    Act and since the words 'ordinary hours' are common English
    words they should, in accordance with established principles
    of statutory construction, be understood in their natural
    meaning unless the context otherwise requires. The word
    'ordinary' means 'regular, normal, customary, usual'. A
    man's 'ordinary hours' of work are the hours during which it
    is usual for him to work. There is nothing in the expression
    'ordinary hours' that connotes payment at any particular
    rate, and to understand the words as meaning 'hours during
    which work is done for which overtime is not paid' would be
    to place upon them a meaning which they simply do not bear.
    The expression 'the ordinary hours he would have worked' in
    my opinion means the same as 'the hours he would ordinarily
    have worked' and it is of course no reason to depart from
    the proper meaning of the words because the same meaning
    could have been achieved by a different form of words; in
    the collocations to which I have just referred the use of
    the adjective instead of an adverb does not change the sense
    of the expression."

26. While it is true that in Kezich the Court was concerned with the meaning of the expression "ordinary hours" and not with the meaning of the word "overtime", the case must be accepted as authority for the proposition that in a context such as that in which the word "overtime" appears in the Act, the meaning to be attributed to the word is not to be confined to the meaning which the word may have in the context of a relevant industrial award.

27. However, I do not understand Kezich to mean that the terms of an award are irrelevant. In many instances, there will not be a formal contract of employment, and the only content to be given to the contract of employment will be drawn from the terms of the relevant industrial award. In such cases, and where the relevant award does define what is to constitute overtime, it seems to me that it would be wrong for the Court, in giving effect to the word "overtime" in s.4 of the Act, to ignore any such definition. If, as I have indicated, the terms of employment are not defined other than by reference to a relevant award, I do not see it as inconsistent with the scope and purpose of the Act, and in particular the mechanism for the calculation of average weekly earnings, that regard should not be paid to such a definition.

28. To do so is not to pursue the impermissible process of regarding the definition of the word "overtime" as governed by the meaning attributed to it in a particular award. The award is used simply to give content to the contract of employment. That contract then becomes a matter to be taken into account in determining whether, for the purposes of the Act, the worker should be regarded as working overtime or not. I use the expression "take into account" as it is the ordinary hours actually worked, not the ordinary hours provided for in a particular award or contract, which is important. But in many instances, probably most cases, there will be no difference between the normal hours of work provided in the contract of employment (which in turn may simply reflect the terms of the relevant award) and the normal span of hours ordinarily worked. Where there is a difference, it must be the actual span of hours ordinarily worked to which regard must be paid, rather than any award prescription, or the provisions of a contract based on the award.

29. While it is true that the Act applies to workers in whatever trade they may be employed, it does not follow that the word "overtime" will have a constant meaning in the sense that it will necessarily be of application to time spent at work in excess of a fixed number of hours. It seems to me that in order to give the word a meaning in any particular application, it is necessary first to have regard to the worker's normal hours of employment, which may vary considerably between one trade and another, and between one worker and another.

30. For the reasons which I have given, where the relevant award provides that hours worked in excess of a stated number of hours is to be regarded as overtime, this will commonly be determinative of the meaning of the word "overtime" for the purposes of s.4 of the Act. However, it would not be determinative of that question if a particular worker, notwithstanding the terms of the award, is engaged upon the basis that he would normally work a span of hours different from the normal hours of work contemplated by the award. A worker who is engaged on such terms could, in my opinion, successfully contend that, notwithstanding the terms of the award, his normal hours of work were defined specifically by the actual arrangement entered into with the employer.

31. I should say that I would not regard the rate of remuneration, and in particular, the fact that a differential rate was to be applied to certain hours worked, as conclusive of the question. For example, the remuneration of a shift worker may be at what would ordinarily be regarded as an overtime rate or higher for all of the hours normally worked. But it could not properly be suggested in such a case, that the worker had no "normal" hours of work. Absent any particular terms of the contract of employment which might provide otherwise, the word "overtime" should be given its ordinary meaning, namely, the time spent working beyond a worker's normal hours of work. I use the word "normal" rather than the word "regular", which latter word appears in the citation to which I have referred from the decision of the Tribunal in Ettridge (supra), to avoid the difficulty which might arise where overtime is regularly worked. By using the expression "overtime", the legislative intent implicit in s.4 is that there be a distinction drawn between normal (in the sense of "ordinary") hours of work and hours worked beyond those normal hours.

32. In some cases it might well be that although the normal hours of work are defined either by express agreement or by reference to an award, there is a regular arrangement pursuant to which at certain times overtime is worked, that is, hours beyond the normal hours of work. In such circumstances, if there was to be a regular and established pattern pursuant to which the overtime was worked, s.4(8)(a) would be of application to bring the overtime back into the calculation of average weekly earnings. If there was not such a regular pattern, the overtime would be excluded.

33. I accept that there may be a fine line dividing situations in which there is an express agreement to work an extended number of hours by way of normal hours of work beyond the normal hours worked in a particular industry, and an agreement that a worker regularly work overtime. But in my opinion, the difference is clear, although its application to particular factual circumstances may give rise to some difficulty.

34. Turning to the present case, it appears to me that the decisions of the review officer and of the Tribunal were correct. It seems to me that the respondent was specifically engaged to work 84 hours a week, and that was the normal span of working hours provided for in the contract of employment. If the respondent had on any particular occasion been asked to work additional hours, no doubt those additional hours would properly be classified as "overtime" for the purposes of s.4 of the Act. Mr Quick QC contended that in determining the meaning of the word "overtime" for present purposes, while the provisions of any particular award were to be disregarded, regard should be paid to what he described as the "general industry standard", representing the normal hours of work beyond which work was to be regarded as overtime. That standard was, on his argument, 38 hours.

35. Certainly, in this case, the Corporation took the view that hours worked in excess of 38 hours constituted overtime, but it is not clear upon what basis it took that view.

36. However, not only is there no such universal standard, but such a process as is suggested by Mr Quick would, in my opinion, give the word "overtime" where it is to be found in s.4 of the Act, an inflexible application which cannot have been intended. The word is of flexible application in that what might constitute overtime in one situation of employment may not in another. It cannot meaningfully be determined what is overtime without reference to the terms of the contract of employment, and in particular what is defined in that contract, either expressly or by implication, to be the normal hours of work expected of the worker. That the word "overtime" should be interpreted in that way, far from doing any violence to the purport of the Act, seems to me to be consistent with the clear legislative intent that a disabled worker's income be maintained at a level reflecting the remuneration he or she might have been expected to receive during the period of incapacity, if the disability had not occurred, for the ordinary hours of work which he or she was normally called on to perform, together with earnings attributable to overtime when that had, prior to the disability, been worked in accordance with a regular and established pattern.

37. In my opinion, not only were the review officer and the Tribunal correct in their construction of the word "overtime", but the approach adopted by the review officer in calculating the quantum of the weekly payments pursuant to s.35 was correct.

38. I would dismiss the appeal.

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed and I am in general agreement with the reasons expressed by Perry J. In particular I agree with his observations as to the meaning of "overtime" in the factual context here present. It was not established that the respondent was employed under any industrial award and the terms and conditions of his employment are to be determined from the contract of employment itself. There is no suggestion in the evidence as to that contract of different classes of hours to be worked by the respondent. What was established is that he was to work from 6 pm to 6 am seven days a week, including Easter, until the maintenance work was complete. They were the normal hours of work pursuant to the contract of employment and none of them may be categorized as "overtime".