Compensation Court of New South Wales CITATION : Lister v Woolworths Limited [2003] NSWCC 19 PARTIES : Ruth A Lister Woolworths Limited MATTER NUMBER(S) : 11580 of 2002 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/07/03 EX TEMPORE JUDGMENT DATE : 07/28/2003 FOR APPLICANT: Mr P R Stockley instructed by Kennedy & Cooke. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr L G Stone instructed by Moray & Agnew. JUDGMENT: 1. This is an application by Ruth Anne Lister against her employer, Woolworths Limited, in which she alleges injury on 5 June 2001 in Beverley Street, Merimbula in the State of New South Wales, when while walking from her place of abode to her place of employment with the respondent, she tripped over in a gully and suffered an anterior cruciate ligament rupture in her left knee. She claims weekly payments of compensation from that date to the present time and continuing under s 35 (apparently a mistake for s 36) s 37, s 38 and s 40 of the Workers' Compensation Act 1987 ("the Act"). She concedes in her Application for Determination, from which I have just quoted, weekly payments of compensation to date, but alleges that these have been at the rate of $238 per week from the date of injury abovementioned to the present time. It is common ground between the parties that in fact she has been paid for that period the sum of $266.20 per week for the first six months of incapacity under s 36 of the Act, and thereafter under s 37 of the Act. 1. The respondent admits that the applicant suffered injury in its employ, if I may so put it, as alleged, and also admits that the applicant continues to be totally incapacitated as a result of it and has been at all material times, and that she has dependent upon her two totally dependent children. The only dispute I have to determine is what is the correct "current weekly wage rate" within the meaning of the Act for the applicant, and therefore whether she has been paid at the correct rate by the respondent until the present time, or is entitled to be paid at some greater rate as she contends. 2. The expression "current weekly wage rate" occurs in s 36 of the Act in subsection (1) which reads: The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker's current weekly wage rate. 3. Subsection (2) provides that in the section: Current weekly wage rate, in relation to a worker, means the worker's current weekly wage rate determined from time to time in accordance with s 42. 4. Prima facie s 37(1) entitles the present applicant to weekly payments of compensation, taking into account her two dependent children, at rates prescribed under the section and from time to time increased, which however must not exceed 90 per cent of her average weekly earnings (subparagraph (a)) but subsection (2) of the section provides that: The total weekly payment under subsection (1) shall not exceed the worker's current weekly wage rate determined from time to time in accordance with s 42. 5. S 42(1) reads relevantly: Subject to this section, a reference in this division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated - (a) was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the Regulations for the purposes of paragraph (c)) - is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) was not a worker or employee to whom paragraph (a), (b) or (c) applies - is a reference to the prescribed proportion of the worker's average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate. 6. No party suggests that the regulations have so prescribed. 7. S 42(8) defines "award" relevantly as: (a) an award in force under the Industrial Arbitration Act 1940 or an award for industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) (without limiting the above) includes a state industrial instrument, and includes any such award, industrial agreement or other agreement or instrument as from time to time amended. 8. I said "relevantly" when quoting these provisions because the omitted parts of them are not relied on by either of the parties here. 9. Further, the expression "prescribed proportion" in s 42(1)(d) quoted above is defined in s 42(8) as: 80 per cent or, if the regulations prescribe some other percentage for the purposes of this section, that other percentage. 10. It is common ground that the regulations have not so prescribed. 11. Exhibit A is a document headed "Woolworths Supermarkets - NSW/ACT Agreement 1991". On the front page it refers to its certification as an agreement reached under s 170LJ of the Workplace Relations Act 1996 (Cth) pursuant to s 170LT of that Act. It provides in clause 5.5.1 as follows: A part-time employee may be engaged to work a regular number of rostered hours to a maximum of 20 days in any 4 week cycle with a maximum of 38 hours in any one rostered week. These hours shall not be less than 40 hours per 4 week cycle nor more than 140 hours in a 4 week cycle. 12. In clause 5.5.5 it provides: Part-time employees shall be paid an hourly rate equal to the approximate weekly rate divided by 38. The provisions of this agreement where relevant shall apply to part-time employees on a pro rata basis. 13. Exhibit B, a claim form executed by the worker in respect of this injury, contains evidence of what in any event the parties agree is the hourly rate paid to the applicant at all material times pursuant to Exhibit A, and this is $13.31. 14. Exhibit D is a document prepared by the respondent, headed "Full-time and Part-time Employee Roster", signed by the applicant on 18 April 2001 and by a person who is apparently, according to the inscription under the signature, a manager employed by the respondent, on 19 April 2001. It provides for work on certain hours of the week in order to make up a roster totalling 20 hours per week, and immediately above the table setting out these hours on particular days there is a clause, obviously intended to refer to the applicant, reading "I agree that this rostering arrangement would be applicable from 23.4.01", the date being handwritten. 15. It is common ground that the applicant's weekly payments, to which I have referred above, have been derived by multiplying her hourly rate referred to above of $13.31 by 20, representing 20 hours per week, as per Exhibit D, the roster agreed to by the applicant and the respondent, so as to reach a total of $266.20, which the respondent says is the applicant's current weekly wage rate for the purposes of s 36 and s 37. 16. Exhibit C is a document headed "PAYG Payment Summary",, which I was told by Mr Stockley for the applicant who tendered it was similar to a group certificate, which discloses that for the financial year 1 July 2000 to 30 June 2001 the applicant's gross earnings were $22,399. This, as he points out in his helpful written summary of argument, results in gross average weekly earnings of $430.74. He says this is the best evidence available of average weekly earnings immediately before the worker became incapacitated on 5 June 2001 and I agree, assuming that, as I understand from Mr Stockley was the case, the calculation took into account the lack of earnings after the above date. 17. Applying to the above average weekly earnings the 80 per cent prescribed proportion referred to in s 42(1)(d) as defined in s 42(8) in the provisions I have quoted above, Mr Stockley says that the figure of $344.60 per week is reached and this, he says, is the applicant's current weekly wage rate pursuant to s 36 and s 37, and is the applicant's true entitlement under those sections. 18. It is convenient now to trace how Mr Stockley says that is so. He says that s 42(1)(a) quoted above does not apply because Exhibit A is not an "award" as defined in s 42(8). Mr Stone incidentally does not contend that subparagraphs (b), (c) and (d) of that definition apply, which is the reason I have not quoted them above, but he does contend that either subparagraph (a) of the definition of "award" does apply or, if it does not, that subparagraph (e) or the final words of the definition reading "and includes any such award, industrial agreement or other agreement or instrument as from time to time amended" do catch Exhibit A. 19. Mr Stockley first says that subparagraph (a) of the definition of "award" in s 42(8) does not apply to Exhibit A because it is not, within the subparagraph: An award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force. 20. Mr Stockley draws my attention to the fact that Exhibit A is on its face an agreement reached under s 170LJ of the Workplace Relations Act 1996 and certified under s 170LT of that Act. When one looks at s 170LJ, one sees that in subsection (1) it empowers an employer to make an agreement with one or more organisations of employees, membership requirements then being set out, subsections (2), (3) and (4) then making machinery provisions as to approval of the agreement by employees. When one looks at s 170LT, one sees that it provides in subsection (1) for an application to "the Commission", meaning the Commonwealth Industrial Relations Commission, for the certification of an agreement. Various requirements and other consequential provisions are set out in subsections (2) to (10) of the section. Obviously then, as is common ground between the parties, Exhibit A is an industrial agreement registered pursuant to those provisions and therefore under the Workplace Relations Act 1996. 21. Mr Stockley points out that there is no evidence that Exhibit A is registered under the Industrial Arbitration Act 1940 (NSW) and the respondent does not suggest otherwise. 22. Mr Stockley points out that the Conciliation and Arbitration Act 1904 (Cth) was repealed by cognate legislation to the Industrial Relations Act 1988 (Cth), the Industrial Relations (Consequential Provisions) Act 1988 (Cth) in s 3, headed "Repeal", which provides that "the Acts specified in Schedule 1 are repealed", that schedule including the Commonwealth Conciliation and Arbitration Act 1904. As Mr Stone points out, awards in force under that Act are preserved by s 7, which provides in subsection (1) that: An award or order under the previous Act immediately before the commencement continues in force after the commencement, subject to the Industrial Relations Act, as if it were an award made under the Industrial Relations Act. 23. "The previous Act" is defined in the interpretation section, s 4, as meaning "the Conciliation and Arbitration Act 1904", as well as other provisions not here relevant. 24. Mr Stockley then traces how it is that by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), the name of the Industrial Relations Act 1988 was changed to the "Workplace Relations Act 1996" because in the definition section, s 4, this appears: In the schedule to this Act, unless the contrary intention appears: Workplace Relations Act means: (a) so far as the context relates to a time before the day on which this Act received the Royal Assent - the Industrial Relations Act 1998 as in force at that time; or (b) otherwise - the Workplace Relations Act 1996. 25. Therefore, says Mr Stockley, while Parliament did not repeal the Industrial Relations Act 1988 when it passed the Workplace Relations and Other Legislation Amendment Act 1996, it did repeal the Conciliation and Arbitration Act 1904 when it passed the Industrial Relations (Consequential Provisions) Act 1988. 26. Mr Stockley says that while an award made under the Conciliation and Arbitration Act 1904 may be an award under the Industrial Relations Act 1988 because of that Act's continuation provisions (see above), the converse does not apply, because of the repeal of the former Act by the latter, so that neither an award or agreement under the Industrial Relations Act 1988, nor an award or agreement made under the Workplace Relations Act 1996 can be an award or industrial agreement within the meaning of the Conciliation and Arbitration Act 1904, because that Act was repealed by the Industrial Relations (Consequential Provisions) Act 1988, even though that was not the position at the time of the insertion of the definition of "award" in s 42(8) in its present form. 27. Mr Stockley also says that Exhibit A cannot be a "state industrial instrument" within subparagraph (e) of the definition of "award" in s 42(8) because those words are apt to connote an award or agreement or other provision operating only within a state. He draws attention in this regard to the fact that Exhibit A is expressed in its title to be the "Woolworths Supermarkets - NSW/ACT Agreement 1998". 28. Somewhat sceptically, I inquired of Mr Stockley what work in his submission paragraph (e) in the definition of "award" in s 42(8) of the Act had to do, in view of the fact that subparagraphs (a) and (b) of the definition jointly cover New South Wales State Awards and industrial or enterprise agreements (subparagraph (b) referring to "an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991"). He submitted that "state industrial instrument" within subparagraph (e) may connote an award or agreement registered under interstate legislation because of s 13 of the Act, which extends its coverage to persons employed in New South Wales to work outside the State, in which circumstances, says Mr Stockley, a Queensland industrial award for example may apply. Similarly, he says, it is possible that some sort of instrument may relate to the wages and conditions of NSW Crown employees which is not of a kind covered by subparagraph (c) of the definition of "award" here under consideration; subparagraph (c) however refers inter alia to ""an agreement made under the Public Service Act 1979". Be that as it may, he says subparagraph (e) cannot apply to Exhibit A because it is registered under federal legislation. 29. Therefore, Mr Stockley says, subparagraph (a) of s 42(1) of the Act does not apply and, the respondent not contending that subparagraphs (b) or (c) of the subsection applies, and subparagraph (e) in his submission not applying, subparagraph (d) applies, so that the applicant is and has been entitled to be compensated under both s 36 and s 37 of the Act at 80 per cent of her average weekly earnings in the financial year prior to injury as set out in Exhibit C referred to above, no specific rate having been prescribed by the regulations within the final words of subparagraph (d). 30. Mr Stone replies to these submissions as follows. He firstly says that subparagraph (a) of the definition of "award" in s 42(8) does apply, because the reference to "an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force" includes a reference to an agreement certified under the Workplace Relations Act 1996. This appears in his written outline of submissions prepared helpfully by other counsel but adopted in Mr Stone's equally able oral submissions. The respondent says it is open to me to take judicial notice of the fact that the Conciliation and Arbitration Act 1904 has been "replaced" by the Workplace Relations Act 1996, and that subparagraph (a) may therefore be interpreted "as though it referred to the Workplace Relations Act 1996", to quote page 2 of the written outline of its argument. 31. S 143 of the Evidence Act 1995 (Cth) is then referred to in the written outline, and it indeed provides that proof is not required about the provisions and the coming into operation of "an Act" (meaning a Commonwealth Act) (see subsection (1)(a)) and further provides (in subsection (2)) that a judge may inform himself or herself about these matters in any way that he or she thinks fit. 32. The written outline then refers on page 4 to the cautionary remarks of Stephen J in Marshall v Watson (1972) 124 CLR 640 at 649 where his Honour said: Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no part of the judicial function to fill gaps disclosed in legislation; as Lord Simon said in Major v St Mellons RDC v Newport Corporation (1952) AC 189 at 191 "if a gap is disclosed, the remedy lies in an amending Act" and not in a "usurpation of the legislative function under the thin disguise of interpretation" . 33. At the same page, however, the written outline refers also to Cooper Brookes (Wollongong) Pty Limited v Commissioner of Taxation (Cth) (1981) 55 ALJR 434, where Mason and Wilson JJ at 443 referred to a Court's task in construing an Act as being to ascertain the legislative intention by reference to the language of the instrument viewed as a whole and said that a literal interpretation of the words of the Statute may, in appropriate circumstances, not be preferred if some other construction appears to conform to the legislative intent ascertained from the provisions of the Statute including the policy which may be discerned from those provisions. Further, their Honours referred there to the necessity to avoid statutory interpretations which are absurd, capricious or unfair unless the language of a statute is intractable. 34. I am, I am afraid, unpersuaded by the respondent's submission in this regard. This result I find distasteful because it appears to me to be a clear statutory anomaly that the New South Wales legislature has not, in subparagraph (a) of the definition of "award" in s 42(8) of the Act, included Commonwealth industrial awards or agreements within the Industrial Relations Act 1988 or the Workplace Relations Act 1996. Had it included there also a reference to the Industrial Relations Act 1988 but not the Workplace Relations Act 1996, it would I think have been possible to hold that a reference to the Industrial Relations Act 1988 meant and included a reference to the Workplace Relations Act 1996, employing if necessary s 143 of the Evidence Act 1995 (Cth), because what the Workplace Relations and Other Legislation Amendment Act 1996 did was to change the name of the Industrial Relations Act 1988 and then to provide that awards or agreements made under that Act continue to operate under the Workplace Relations Act 1996 as if they were made under that Act. That is not the statutory scheme however in relation to the "replacement", as the respondent's written outline puts it, of the Conciliation and Arbitration Act 1904 by the Industrial Relations Act 1988. 35. The Industrial Relations (Consequential Provisions) Act 1988 in fact repeals the Conciliation and Arbitration Act 1904. Although it then goes on to provide that awards made under the Conciliation and Arbitration Act 1904 shall continue in force as if they were awards made under the Industrial Relations Act 1988, it does not otherwise preserve the Conciliation and Arbitration Act 1904, which it repeals. I do not think that by this route it can be said that an industrial agreement certified under the Industrial Relations Act 1996, which Exhibit A is, is an award within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth that is in force within the meaning of subparagraph (a) of the definition of "award" in s 42(a) of the Act. 36. I do not think either that Exhibit A can be said to be a "state industrial instrument" within subparagraph (e) of that definition because again I agree with Mr Stockley's submission that this phrase is apt to connote an industrial award, agreement or other instrument which only operates within a state. That cannot apply to Exhibit A because it operates also, according to its very title, in the Australian Capital Territory. That alone, no doubt, would have prevented its registration in NSW. It is in any event registered under federal legislation. I do not think that Mr Stone's submission that this is pure coincidence, and that essentially Exhibit A operates within New South Wales and is therefore a "state industrial instrument", should be accepted. 37. Despite all this, is the operation of s 42(1)(a) saved here because of the final words of the definition of "award" in s 42(1), "and includes any such award, industrial agreement or other agreement or instrument as from time to time amended"? Mr Stockley submits that it is not, because he says that the meaning of this provision is controlled by the word "such", which refers one to the categories set out in subparagraphs (a) to (e) over the definition. That is to say, he says that "an award" within the meaning of those words must refer to an "award" as set out in subparagraph (a) made under the Industrial Arbitration Act 1940 (NSW) or the Conciliation and Arbitration Act 1904 (Cth) or under subparagraph (d) (which refers to "an award made by the Coal Industry Tribunal under the Coal Industry Act 1946"). He says that "industrial agreement" refers to the "agreements" referred to in subparagraph (a), (b) and (c) of the definition, and that "instrument" is used to mean what is referred to in subparagraph (e) of the definition. Consequently, he says the words "industrial agreement or other agreement or instrument as from time to time amended", as used in the final words of the definition of "award" abovementioned, cannot include agreements of a kind not referred to in the preceding subparagraphs of the definition. They refer, he says, to amendments made "from time to time" to the awards, agreements and instruments referred to in subparagraphs (a) to (e). 38. Mr Stone contends otherwise. He says the purpose of the section, s 42, is to be discerned generally from the fact that in various ways it limits incapacitated workers' compensation during incapacity by reference to current weekly wage rates, so as to not to make the term "current weekly wage rate" necessarily coextensive with actual average weekly earnings, and then takes me particularly to the exclusion of such matters as payments in respect of shift work, overtime and other penalty rates effected by s 42(6)(a). Clearly, he says, to effect this purpose Parliament must have intended to include agreements made under the Industrial Relations Act 1996 in the definition of "award" in s 42(8), and the final words of the definition are a "catch-all", as he put it, to include such industrial agreements as that set out in Exhibit A which may not otherwise be covered by the subsection, because the word "such" there simply means "similar", so as to connote any other industrial award or agreement, such as Exhibit A, not otherwise caught by the definition of "award" in the subsection. 39. With great reluctance, because I think that this case has exposed a statutory anomaly, I think the intention of the final words of the definition of "award" in s 42(8) quoted above, as Mr Stockley submits, is merely to include any amendments made "from time to time", to quote part of the final words, to any award, industrial agreement or other agreement or instrument as referred to in subparagraphs (a) to (e) of the definition, so as to make it clear that what is caught by those subparagraphs is not only the original award, industrial agreement, other agreement or instrument, but also any amendments made to it "from time to time". That is the natural reading of those final words, I think, and it would be to disregard the ordinary meaning of the word "such" occurring in them to interpret this wording as apt to include any category of industrial award or agreement not comprehended by subparagraphs (a) to (e) preceding it. To hold otherwise would be to ignore the warning in Marshall's case quoted above, referred to very fairly in the respondent's written outline of submissions, even though I also note the warning in Cooper Brookes' case. 40. This being so, I must uphold Mr Stockley's submission that Exhibit A is not caught by the definition of "award" in s 42(8) of the Act. It follows that Mr Stockley's submission that s 42(1)(d) of the Act applies, so that the applicant is and has been entitled to be compensated under ss 36 and 37 on the basis of a calculation of 80 per cent of his weekly earnings within the subparagraph, derived as set out at page 2 of Mr Stockley's written outline of argument, namely the sum of $430.75 per week reduced by 20 per cent, as set out in paragraph 3 of his written outline of argument, so as to attain a figure of $344.60 per week, being 80 per cent of the applicant's current weekly wage rate derived pursuant to s 42(1)(d) as above, is correct. 41. It is unnecessary for the purposes of these reasons to make formal findings in relation to injury and incapacity, as they are already admitted. 42. I make the following award in the applicant's favour: 1. $344.60 per week from 5 June 2001 to 5 December 2001 under s 36 and from 6 December 2001 to date and continuing under s 37. 2. Credit to be given to respondent for payments of $266.20 per week from 5 June 2001 to date. 3. Respondent to pay applicant's costs. Mr P R Stockley instructed by Kennedy & Cooke appeared for applicant. Mr L G Stone instructed by Moray & Agnew appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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