KIRAZ v CLASSIC TILES PTY LTD [1995] NSWCA 243

KIRAZ vy CLASSIC TILES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and SHELLER JJA 9 August 1995, 18 August 1995

[1995] NSWCA 243

WORKERS COMPENSATION — s40 Workers Compensation Act 1987 calculation of current weekly wage rate overtime payments disregarded.

On 29 July 1993 Commissioner Cross awarded the appellant, Albert Kiraz, weekly compensation at the rate of $396.30 pursuant to s40 of the Workers Compensation Act 1987. The Commissioner found that:

* the worker was partially incapacitated in the course of his employment with the respondent, Classic Tiles Pty Ltd;

* the weekly amount he would have been earning but for the injury was $700;

* his award rate of an ordinary weeks' work was $473 and;

* the average weekly wage he was able to earn after the injury was $300.

In an application to the Compensation Court for review of this decision, Judge Maguire QC held that the Commissioner had erred in law and substituted the rate of $173. His Honour treated $473 rather than $700 as the weekly amount that the worker would probably have been earning but for the injury. The difference between $473 and $700 was overtime which s42(6) of the Act required him to disregard. The appellant challenged this decision on the grounds that his Honour erred in substituting $473 for $700 as the weekly amount of his probable earnings.

At the relevant time s40(1) of the Act provided that the weekly payment of compensation to a worker in respect of partial incapacity for work was not to exceed the difference between the amount the worker probably would have been earning but for the injury and the weekly amount the worker was earning or able to earn after the injury. $40(2) provided that where a calculation is to be made under subs(1) on the notional basis the amounts shall be determined by reference to the current weekly wage rate.