Kezich v Leighton Contractors Pty Ltd [1974] HCA 50

High Court of Australia Menzies, Gibbs, Stephen and Mason JJ. Kezich v Leighton Contractors Pty Ltd [1974] HCA 50

ORDER Special leave to appeal granted. Appeal allowed. Order of the Full Court of the Supreme Court of Western Australia, whereby it answered in the affirmative two questions in a case stated by the Chairman of the Workers' Compensation Board of Western Australia, be set aside and in lieu thereof order that the questions in the said case stated be answered in the negative. Order that the respondent pay the applicant's costs of the case stated before the Full Court of the Supreme Court and the applicant's costs of this appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 22 Menzies J.

I have had the advantage of reading the judgments of Gibbs J., and Mason J. I agree with them.

Gibbs J.

The appellant was on 3rd December 1973 injured while working at Mt Newman as a labourer in the employment of the respondent. As a result he was totally incapacitated. It is admitted that he is entitled to an award of workers' compensation under the legislation of Western Australia. The question for decision is at what rate the award should be made in respect of the period since 27th December 1973 when the amendments made by the Workers' Compensation Act Amendment Act, 1973 W.A. came into force. By cl. 1 (c) (i) of the schedule to the Workers' Compensation Act, 1912-1973 W.A. ("the Act") the amount of compensation payable when total incapacity for work results from the injury is (subject to a proviso which is immaterial for present purposes) "an amount equal to the weekly earnings of the worker computed in accordance with clause 2 of this Schedule". Clause 2 of the schedule is as follows:

For the purposes of this Act, "weekly earnings" means 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. The appellant's employment with the respondent was subject to an industrial award — the Building Construction Employees and Builders' Labourers' Award, 1973. Clause 14 of that award provided, inter alia, that "the ordinary working hours shall be 40 in a week to be worked in five days". The award fixed the rates of pay which were to be paid for these "ordinary working hours", and provided an overtime payment, at an increased rate, "for all work in excess of the hours prescribed in clause 14 of this part of this award": cl. 17. In fact the appellant was engaged by the respondent on the basis that he would normally work sixty hours per week while employed by the respondent at Mt Newman; he was to work ten hours six days a week. If he had not sustained his injury his employment would have continued on the same basis, at least until the date on which the Workers' Compensation Board gave its decision on his application for compensation. The question for decision is whether he was, as the Board decided, entitled to an award of $167.50 per week which, it was conceded, should for the purposes of his application be taken as the amount which he ordinarily earned in the employment of the respondent prior to the accident, or whether, as the majority of the Full Court of the Supreme Court of Western Australia held, he was not entitled to an award at a higher rate than $91.40 which represented the pay he would have received if he had worked forty hours per week. The answer to this question depends entirely on the proper construction of cl. 2 of the schedule.