Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46

High Court of Australia Latham C.J. McTiernan, Williams, Webb, Fullagar and Kitto JJ. Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 17 Latham C.J.

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales made upon a case stated by the Workers' Compensation Commission pursuant to s. 37 (4) of the Workers' Compensation Act 1926-1947 N.S.W.. The appellant was employed by the respondent in a timber mill. On 18th December 1947 he cut the back of his left hand by coming into contact with a hanging saw. He was totally incapacitated for work until 2nd January, when he resumed work. The injury arose out of and in the course of his employment. He therefore became entitled to receive compensation from his employer in accordance with the Act, ss. 7 and 9. He was paid compensation in respect of 18th and 19th December. The Federal Timber Workers' Award, under which he was working, provided for fourteen consecutive days' annual leave in the case of the appellant, who had been continuously employed by the respondent for a period of eleven years. The respondent closed down its works on 20th December in order to allow the employees the fourteen days' leave. The appellant was paid wages at his full rate in respect of these fourteen days. Christmas Day, Boxing Day and New Year's Day were holidays under the provisions of the award in respect of which the appellant was entitled to be paid. He was paid full wages in respect of these holidays. He claimed workers' compensation at the rate of £5 15s. 0d. per week (£3 10s. 0d. for himself, £1 5s. 0d. in respect of his wife and £1 in respect of his two children). His Honour Judge Rainbow held that he was not entitled to be paid workers' compensation in respect of the public holidays because he was not expected to perform any service on those days, so that he had received all that he was entitled to get under his contract. In the case of the annual leave, however, his Honour was of opinion that he was entitled to workers' compensation for that period because his earning capacity in respect of some possible other employment was destroyed for that period. The appellant contended that he was entitled both to holiday pay and to workers' compensation in respect of the public holidays as well as in respect of the period of annual leave, and the employer contended that he was not entitled to workers' compensation in respect of either the public holidays or the annual leave. The learned judge stated a case for the opinion of the Supreme Court upon the following questions of law:—"(a) Is an incapacitated employee, working under the terms of the Timber Workers (Federal) Award, entitled for the period of the annual holidays both to compensation and holiday pay? (b) Is such a worker entitled under the award for the public holidays Christmas Day and Boxing Day both to wages and compensation for each day?"