VAN LEER AUSTRALIA PTY LTD vy STEPHENSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and POWELL JJA 11 August 1994, 9 September 1994 [1994] NSWCA 331 WORKERS' COMPENSATION — assessment of compensation — part-time worker. WORKERS' COMPENSATION — assessment of compensation under s40 — worker a casual employee prior to injury — whether worker a "part time worker" under s42(4) — held: (per Priestley and Powell JJA; Handley JA contra) — not necessary to decide in present case — same result would ensue whether worker a casual or part time worker — assessment of compensation under s40 requires a "realistic amount" to be determined where worker not employed for a full week — trial judge had determined an appropriate "realistic amount": Smith v Dafinis (1991) 8 NSWCCR 9; Miller vy CSR Timber Products Pty Ltd (1993) 29 NSWLR 611 applied. WORDS AND PHRASES — "part-time worker". Compensation Court Act 1984, s32. Workers Compensation Act 1987, s40, s42, s43. ORDER Appeal dismissed with costs. Priestley JA I have had the benefit of reading the reasons of Handley JA in draft. I agree with all he has written, subject to one reservation. The reservation relates to the opinion he has formed concerning the meaning of part-time worker in s42(4). The subsection in its form applicable to the present case said: (4) Subject to subs(6) and subs(7), if the amount of a part-time worker's current weekly wage rate, as determined under subs(1), exceeds the worker's average weekly earnings referred to in s37, a reference in this Division to that worker's current weekly wage rate is a reference to those average weekly earnings.' By the Workers Compensation (Benefits) Amendment Act 1991 the words "referred to in s37" were deleted. (S3 and Schedule 1, CL(5)(b).) The explanatory note to CLS does not give any reason for the deletion of the words. I am not clear whether they have any bearing on the way in which part-time worker should be interpreted. Further, it seems to me that the reasons why McGrath CJ held the worker in the present case was not a part-time worker within the meaning of s42(4) and those of Handley JA for reaching the opposite conclusion are fairly evenly balanced. As, in my opinion, the same result will be reached whichever view is adopted in the present case, and as the subsection in which the words part-time worker appear is in a slightly different form now from that which it had until 1991, it is not necessary for me to form a concluded opinion on the question, and I refrain from doing so. I agree with Handley JA that the appeal should be dismissed with costs. Handley JA This is an appeal by the employer from the decision of McGrath CJ of the Compensation Court who had dismissed the employer's application under s36 of the Compensation Court Act (Court Act) for review of a decision of 2 UNREPORTED JUDGMENTS Wright C. The appeal to this Court is governed by s32 of the Court Act in its original form and is thus limited to questions of law. Wright C found that the worker was partially incapacitated for work from 25 May 1988 and continuing. In assessing compensation under s40 of the 1987 Act he found that her probable weekly earnings had she not been injured and continued in the same or some comparable employment would have been $250 from 25 May 1988 to 30 June 1989 and $265 thereafter. He also found that the applicant's ability to earn in some suitable employment since the injury had been $120 per week from 26 May 1988 to 30 June 1989 and $130 per week thereafter. The resulting differences were $130 and $135 a week for the two periods but, no doubt in the exercise of his discretion under s40(1) he fixed her compensation at $120 per week from 25 May 1988 and continuing. The appellant's initial submission before this Court was that the Judge had treated the application for review as an appeal and had failed to hear and determine it according to law. There is no substance in this point. The employer's notice of motion specified the grounds on which review was sought. These were framed as grounds of appeal limited to questions of law arising on the evidence before Wright C. The Judge ruled on the issues presented to him. In these circumstances it was, with respect, beside the point for the appellant to remind this Court of its decisions which have established the width of the review power conferred by s36 because the Judge was never asked to do more than he did. The appellant is bound by the way it conducted the review and is not entitled to complain here that the Judge failed to do something he was never asked to do. See Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148 (CA) at 154. The other grounds of appeal in the main reagitated issues raised by the notice of motion which initiated the review proceedings. With one exception they were directed to the Commissioner's findings, affirmed by the Judge, that the worker's probable weekly earnings, if uninjured, were $250 for the earlier period and $265 thereafter based on the 30 hours she worked on average each week during the six months before her injury. The remaining ground of appeal was that there was no evidence to support the Commissioner's finding that the worker was able to earn $120 a week in the earlier period and $130 a week thereafter. These issues arise under s40, s42 and s43 of the Workers Compensation Act 1987 (the Act) in their original form which defined a worker's entitlement to compensation during partial incapacity. The Act has since been amended. The assessment of the respondent's entitlement required the Court to identify the weekly amount which she would probably have been earning but for the injury in the same or some comparable employment (s40(1)(a)), and relevantly the average weekly amount which she was able to earn in some suitable employment after the injury (s40(1)(b)). The appellant submitted that there was no evidence to support the concurrent findings that the worker's probable earnings in the same employment, if uninjured, would have been $250 and $265. However there was evidence of the worker's earnings for the six months prior to August 1987, when she suffered her repetitive strain injury, which amply supported the weekly figure of $250. The higher figure merely reflected an adjustment for inflation. There was no direct evidence which supported the Commissioner's findings of $120 and $130 but this finding had not been challenged in the notice of motion. If it had been the worker may have led further evidence before the Judge which would have cured any deficiency. URJ VAN LEER AUSTRALIA PTY LTD v STEPHENSON (Handley JA) 3 But in any event the point was misconceived. The Commissioner was entitled to find that the worker retained substantial earning capacity. This finding was favourable to the employer because the worker had claimed she was totally incapacitated. The Commissioner having seen and heard her in the witness box and having medical evidence before him was entitled to find that she could work as a part time shop assistant. He was then entitled to draw upon his general knowledge of industrial awards and conditions to determine her probable earnings in that employment. Such a course is supported by long standing and binding authority. See J and H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 at 632-634, 636 per Barwick CJ and at 643 per Windeyer J and the cases there cited. The remaining grounds of appeal alleged errors of law in the application of s40, s42 and s43 of the Act. In this case compensation had to be determined on the basis of the average weekly amount the worker was able to earn because she was not earning in fact (s40(1)(b)). S40(2)(a) required that amount to be determined "by reference to the current weekly wage rate for some suitable employment". S40(2)(b) then required the amount which the worker would probably have been earning, if not injured, to be determined "by reference to the worker's current weekly wage rate for the pre-injury employment". Each amount is hypothetical because the worker is injured and not earning. S42 then applied, at least in most cases, to enable the appropriate rates to be fixed. The weekly wage rate for workers employed under awards was "the rate of remuneration under that award... for 1 week in respect of the work being performed by the worker immediately before being incapacitated". (s42(1)(a)). The Commissioner and the Judge held that there was no evidence that the worker had been employed under any award. This was true but they were entitled to rely on their general knowledge of industry and industrial awards to identify the likely award and the likely award rates in force at particular times. See J and H Timbers Pty Ltd v Nelson (1972) 126 CLR 625. The relevant rate however was that for a full week's work. Since there was no evidence and no finding of the relevant award the Commissioner, and the Court, were governed by s42(1)(d) in its then form which was framed to pick up any workers not covered by the previous paragraphs. At the relevant time the current weekly wage rate for any such worker was fixed by CL9A of the Workers (General) Regulation at $288.60 per week. S42(1)(d) in its current form now fixes the relevant rate by reference to the worker's average weekly earnings. Before her injury the respondent had been a casual employee, as ordinarily understood, available on call, and her hours of work had varied from week to week with the employer's requirements for casual labour. The applicable "current weekly wage rate" as determined by s42 for a full week could not provide, by itself, any reasonable basis for assessing her compensation entitlement. The Act however made appropriate provision for such an assessment to be conducted on a realistic basis. S40(2)(a) and s40(2)(b) itself provided that "the average weekly amount" the worker is able to earn, and if uninjured would have been able to earn, in each case is to be determined "by reference to" the relevant rate. The decisions of this Court in Smith Family v Dafinis (1991) 8 NSWCCR 9 at 16-17 and Miller v CSR Timber Products Pty Ltd (1993) 29 NSWLR 611 at 624-625 endorsed the view of Burke CCJ that this language requires the Court to use the relevant rate as a step "in the process of arriving at a realistic amount" for those hypothetical earnings in each case. If the worker, before the injury, had not been 4 UNREPORTED JUDGMENTS employed for a full working week then the "realistic amount" for such a worker may have to reflect the actual hours worked although it would always be necessary to bear in mind that the injury may have caused the worker to lose capacity which he or she had intended to fully exploit at a later stage. S42(4) also dealt with this situation by making express provision for "part time workers". It provided that if the current weekly wage rate for such a worker as determined under subs(1) exceeds the worker's average weekly earnings referred to in s37 those earnings become that worker's current weekly wage rate. The subsection was later amended to delete the reference to s37. The Judge held that the respondent was not a part time worker for the purposes of this provision because she did not limit her hours but worked as required and sometimes worked a full week. The appellant submitted that the Judge erred in law and that on the undisputed facts the respondent was a part time worker within the subsection. S42(4) was derived from s9(10) of the 1926 Act as amended by Act No 73 of 1981, Schedule 2, CL2(o), which introduced for the first time the reference to '[pa]rt time worker". This expression was not then, and is not now defined in the relevant Act. Its meaning was discussed by Priestley JA in Henderson v NSW Baptist Homes Trust (1990) 21 NSWLR 360 at 367-368 in relation to a claim by such a worker to an award under s11(2) of the 1926 Act. This discussion does not greatly assist in the present context although his Honour referred at 367 to s9(10). S42 appeared to contain a comprehensive scheme which enabled the Court to fix a current weekly wage rate "for one week" for every worker. The comprehensiveness of the scheme is demonstrated by the catch all provision in s42(1)(d), the provisions which authorised further prescription by regulation (s42(1)(c), s42(1)(d), and (5)), the direction in s42(6) to disregard allowances and overtime, and the provision in s42(7) dealing with workers employed under two or more contracts of service. The meaning of part time worker in s42(4), in the original Act, favoured by the Judge would have left casual workers working irregular hours outside the scope of the section. However the construction contended for by the appellant would ensure that s42 provided a complete scheme covering all casual workers. It would also ensure that there was no gap in subs(7) which would apply whenever a worker was working under two or more contracts of service even if one or more was as a casual. The respondent was a part time worker as ordinarily understood because she did not regularly work a full week. That wider meaning for the statutory language is certainly open, and both on principle and authority I would adopt it. I conclude therefore that the Judge erred in adopting the narrower meaning and I would hold that the respondent was a part time worker for the purposes of s42(4). In my opinion this conclusion is strengthened by the reference in s43(1)(e) to a casual worker. Under the Act in its original form the only relevant gateway to s43 was s42(4) and its reference to part time workers. Where a part time worker's average weekly earnings are less than his or her current weekly wage as determined under s42(1) the lower rate based on actual earnings must be used. The s42(1) figure for this worker at the relevant time was $288.60 per week. The average weekly earnings referred to in s37(7) are to be determined in accordance with s43. The appellant challenged the Commissioner's conclusion that the respondent's average weekly earnings before her injury were those derived from the average of thirty hours she worked each week for the employer at ordinary time rates, but only on the no evidence ground previously referred to. There was no legal challenge to the methodology adopted URJ VAN LEER AUSTRALIA PTY LTD v STEPHENSON (Powell JA) 5 by the Commissioner nor was it suggested that he had otherwise erred in law in reaching this conclusion. The Commissioner therefore was correct in treating the respondent as a part time worker within s42(4) and adopting her average weekly earnings computed in accordance with s43 as the basis for his award. Although in my opinion the Judge erred in law in his construction of s42(4) his error in the result was not material and in substance his decision to dismiss the application for review was correct. An immaterial error of law does not vitiate a judicial decision and does not require or justify the intervention of an appellate court. See Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 156 at 177. In my opinion therefore the appeal should be dismissed with costs. Powell JA I have read, in draft the separate Judgments which have been prepared by Priestley JA and Handley JA. While I agree, for substantially the reason given by Handley JA, that the Appeal should be dismissed with costs, the fact that substantially the same result would flow whether the Respondent be held to be "a part-time worker" or "a casual worker", coupled with the uncertainties inherent in the two concepts, leads me, in common with Priestley JA, to think that the determination of the meaning which, in this context, is to be attributed to each might be left until the Court has a case in which such a definitive determination is called for. In the absence of some provision for their definition, the phrases "a casual worker" and "'a part-time worker" - but particularly the former - are hardly to be regarded as terms of precision; rather, so it seems to me, each is a colloquial expression, which takes its colour from the context in which it is used (see, for example, Knight v Bucknill!; Hughes v Walker?; Doyle v Sydney Steel Co Ltd3). When the Workers Compensation Act 1926 ('the 1926 Act") was originally passed, neither the phrase "a person whose employment is casual" appearing in para(d) of the definition of'worker" in s6(1) of the 1926 Act (from the later version of which para(b) of the definition of 'worker" in s3(1) of the Workers Compensation Act 1987 ("the 1987 Act') is derived) - which definition was intended to limit the class of persons entitled to compensation - nor the phrase *casual worker" appearing in s14(1)(e) of the 1926 Act (from the later version of which s43 (1)(e) of the 1987 Act is derived) - which provision was intended to permit one to calculate 'the average weekly earnings" of such a worker - was accompanied by any provision for its definition. Para(d) in the definition of "worker" in the 1926 Act was amended in 1942 by the addition, immediately after the word "casual", of the phrase "that is for one period only of not more than five working days", while s14(1)(e) of the 1926 Act was amended in 1951 by deleting the words "who has worked under successive contracts of service with two or more employers in the same industry" where appearing after the words "casual worker" and by substituting therefore the words "that is to say a worker whose contracts of service are mainly contracts for separate periods, each of which is of not more than five working days in the same industry". While one might be justified in thinking that the object sought to be achieved by the passing of such amendments was to render precise that which was formerly imprecise, one might be forgiven for doubting that that object was, 1. (1913) 6 BWCC 160 2. (1926) 19 BWCC 79 3. (1936) 56 CLR 515 6 UNREPORTED JUDGMENTS in fact, achieved (see, for example, Kirkland v Gilmore+; Haywood v Holt; Kingsman v Handcock®; Walker v Evans'; Miles v Rudd'. In a slightly different industrial context - that involving the regulation of the terms and conditions of employment - a greater degree of precision - even in the absence of a provision for definition - seems - at least at one time - to have been achieved. Thus, in In re Shop Assistants Newcastle and Metropolitan Awards? De Baun J said: "T think casual employees are what their name implies "employees who are employed as and when required! In this industry some of them are required with some regularity at busy times, eg on Fridays or Saturdays, or during the weeks prior to Christmas. Casual employees are to receive a rate of pay according to their age, that is to say, at an hourly rate equivalent to the appropriate weekly rate plus 12 1/2 per cent. " while in In re Clerks (State Award)!° Taylor J, then the President of the Industrial Commission, when introducing into the Award provisions for the employment of part-time employees, said: "' Part-time Employees', on the evidence, are not in my opinion strictly casuals. They are persons who are prepared to give a portion of their time, in most instances somewhat less than the normal working week, to an employer. They do not go from place to place, but are employed in the one establishment. It seems proper that provision should be made to meet this class of employee. The evidence shows that in most instances they are married women who have domestic obligations but who are still required, perhaps by force of economic circumstances, to do some work. They cannot give a full week's work because of their own personal problems, but such work as they can give they are employed for. It is quite proper that a just and reasonable minimum rate should be fixed for them for the work so performed. I think that it is a proper provision and the award now to be made will contain such a provision. It would only apply to female employees and there will be stringent safeguards against its possible abuse. " In other cases, 'casual employees" have been defined in the relevant Award in varying terms, as, for example, "employees by the hour/day and paid by the hour/day" or "employees engaged and paid as such" (see, for example, In re Motor Bus Drivers and Conductors (State) Award".!! What I have written will, I think, make it clear that, as Priestley JA has suggested, depending upon the discrimen which one chooses to apply, one can make as equally respectable a case for the view that the Respondent was "a casual worker" as one can for the view that she was "a part-time worker" for the purposes of s42, and s43 of the 1987 Act. The determination of what is the proper discrimen to be applied is, in my view, a question which justifies far more extensive argument, and consideration, than was given to it on the hearing of this appeal. Appeal dismissed with costs. Counsel for the Appellant: HJ MATER [1949] WCC 127 [1951] WCR 174 [1955] WCR 118 [1956] WCR 101 [1956] WCR 149: [1957] SR 273 [1957] AR at 344 10. [1953] AR at 224-5 11. [1956] AR at 117 CPN AME URJ VAN LEER AUSTRALIA PTY LTD v STEPHENSON (Powell JA) Instructed by: DEXTER HEALEY AND CO Counsel for the Respondent: RC TONNER Instructed by: BAKER, RYRIE RICKARDS, TAMWORTH