Kezich v Leighton Contractors Pty Ltd [1974] HCA 50; (1974) 131 CLR 362 (22 October 1974)

HIGH COURT OF AUSTRALIA

KEZICH v. LEIGHTON CONTRACTORS PTY. LTD. [1974] HCA 50; (1974) 131 CLR 362

Workers' Compensation (W.A.)

High Court of Australia
Menzies(1), Gibbs(2), Stephen(3) and Mason(4) JJ.

CATCHWORDS

Workers' Compensation (W.A.) - Total incapacity for work - Entitlement to be paid amount equal to weekly earnings - Ordinary wage or salary for ordinary hours worker would have worked but for incapacity - Workers' Compensation Act. 1912-1973 (W.A.), 1st Sch cll. 1(c) (i).2.

HEARING

Perth, 1974, September 5;
Sydney, 1974, October 22. 22:11:1974
APPEAL from the Supreme Court of Western Australia.

DECISION

Oct, 22.
The following written judgments were delivered:-
MENZIES J. I have had the advantage of reading the judgments of Gibbs J.,

GIBBS J. The appellant was on 3rd December 1973 injured while working at Mt Newman as a labourer in the employment of the repondent. 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 a week to be worked in fove 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 purpose 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. (at p364)

2. The Act deals with the compensation payable to workers generally; it is not confined in its operation to any particular trade. Moreover, although most workers within the meaning of Act are no doubt employed in accordance with the terms of an industrial award, that is not a condition of the employer's liability to pay compensation. It would not be legitimate to construe the schedule by placing upon the words "ordinary hours" the meaning which they may happen to bear in an industrial award governing employment of a particular kind. The meaning of the Act cannot be determined by reference to the provisions of the Building Construction Employees and Builders' Labourers' Award 1973. Indeed even if it could be established that many industrial awards use the phrase "ordinary hours" and that wherever it appears in any award it has the same meaning, that would not justify referring to a multitude of unrealated documents by different authors as an aid to the construction of a statute. What has to be determined is the meaning that those words have in the Act and since the words "ordinary hours" are common English words they should, in accordance with established principles. of statutory construction, be understood in their natural meaning unless the context otherwise requires. (at p365)

3. The word "ordinary" means "regular, normal, customary, usual". A man's "ordinary hours" of work are the hours during which it is usual for him to work. There is nothing in the expression "ordinary hours" that cannotes payment at any particular rate, and to understand the words as meaning "hours during which work is done for which overtime is not paid" would be to place upon them a meaning which they simply do not bear. The expression "the ordinary hours he would have worked" in my opinion means the same as "the hours he would ordinarily have worked" and it is of course no reason to depart from the proper meaning of the words because the same meaning could have been achieved by a different form of words; in the collocations to which I have just referred the use of the adjective instead of an adverb does not change the sense of the expression. (at p365)

4. With respect, I cannot agree with the suggestion that if the phrase is construed in this way the word "ordinary" would add nothing to its meaning. If the word "ordinary" where it appears before "hours" had been omitted from cl. 2, it would not have been clear whether, in the common case in which a workman's hours of employment had varied from week to week, depending upon whether he had worked overtime and on how much overtime he had worked, the hours mentioned were to be determined by ascertaining what hours were ordinarily worked or by taking an average or in some other way. As the clause stands, what has to be determined is what were the hours the workman would ordinarily have worked had he not been incapacitated. The workman is then to be paid the wage he would ordinarily have received for working those hours. The clause is not concerned with the question whether the "ordinary wage" included something extra for overtime, but solely with the question what was ordinary for the particular worker concerned. (at p365)

5. In my opinion, the words of cl. 2 of the schedule, when read with cl. 1(c)(i), on their proper construction have the effect that during total incapacity the workman is to receive as compensation a weekly amount calculated by applying to the number of hours he would ordinarily have worked each week the rate of pay (including overtime) that he would ordinarily have received in respect of those hours. There is nothing in this result that is absurd or inharmonious with the scheme of the Act; on the contrary, construed in this way, the schedule provides what appears to me to be an eminently fair basis of compensation to a workman who has been totally incapacitated by his injury. (at p365)

6. On this construction, the application of the schedule to the present case presents no difficulty. In fact, in accordance with the terms of his engagement, the applicant usually worked sixty hours per week. The ordinary hours he would have worked, had he not been incapacitated, amounted to sixty hours per week. (at p366)

7. For the reasons I have given, I consider that the questions in the case stated should have been answered as follows:
1. On the facts as found did the Board err in law in holding that the applicant was entitled to an award of weekly payments from 27th December 1973 at the rate of $167.50?

A. No.
2. On the facts as found did the Board err in law in holding that from 27th

December 1973 the applicant was entitled to weekly payments at a higher rate than $91.40 per week?
A. No. (at p366)

8. I would allow the appeal. (at p366)

STEPHEN J. For the reasons stated in the judgments of my brothers Gibbs and Mason I would grant special leave, allow this appeal and answer in the negative both of the questions asked in the case stated. (at p366)

MASON J. This application for special leave to appeal from a decision of the Full Court of the Supreme Court of Western Australia on a case stated by the Workers' Compensation Board relates to s. 13 of Act No. 96 of 1973, which came into operation on 27th December of that year. What the section did was to substitute a new cl. 2 in the 1st Sch. of the Workers' Compensation Act, 1912 (W.A.), as amended, thereby introducing a new definition of the expression "weekly earnings". The expression is of importance because the entitlement to weekly compensation which the Act confers upon an injured worker who is totally or partially incapacitated for work is necessarily calculated by reference to his weekly earnings "computed in accordance with clause 2". (at p366)

2. Clause 2 is in the following terms:
"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."
Formerly the clause had contained a series of provisions prescribing rules to be observed in calculating the "earnings" and "average weekly earnings" of a worker by reference to which entitlement to weekly compensation was calculated. Broadly speaking, the repealed cl. 2 was so expressed that an injured worker's entitlement to weekly compensation was calculated by reference to the rate per week at which the worker was being remunerated. (at p366)

3. The facts recited in the case are that the applicant commenced employment with the respondent as a builders' labourer at Mt Newman on 21st September 1973. He was continuously so employed until 3rd December 1973 when he sustained an injury at work which has since totally incapacitated him. The applicant was engaged by the respondent on the basis that he would normally work sixty hours per week whilst employed by them, his hours being worked as to ten hours on each of six days in the week. His employment was subject to the Building Construction Employees and Builders' Labourers' Award, 1973. This award provided a rate of pay of $2.15 per ordinary hour of work, being $86 for forty such hours. Clause 14 of the award describes as the ordinary hours of work the hours between 7.30 a.m. and 5.30 p.m. from Monday to Friday inclusive, not exceeding eight hours per day. (at p367)

4. It is accepted that the respondent remunerated the applicant as to forty hours at the ordinary rate and as to varying hours at a rate equal to time and a half, double time, and double time and a half, in accordance with the provisions of the award as to overtime. If he had not sustained injury on 3rd December 1973 his employment would have continued on the same basis at least until 17th April 1974. It is conceded that the amount of $167.50 should be accepted as the amount ordinarily earned by the applicant in the employment of the respondent prior to the accident. (at p367)

5. Compensation was paid by the respondent up to and including the week ending 31st December 1973 at the rate fixed by the Act then in force. (at p367)

6. The case states the following questions: 1. On the facts as found, did the Board err in law in holding that the applicant was entitled to an award of weekly payments from 27th December 1973 at the rate of $167.50? 2. On the facts as found, did the Board err in law in holding that from 27th December 1973 the applicant was entitled to weekly payments at a higher rate than $86 per week? (at p367)

7. The figure of $86 in question 2 was altered by consent to $91, the alteration being occasioned by a more recent amendment to the award. By a majority decision the Full Court answered each question in the affirmative. (at p367)

8. The applicant's case was that "weekly earnings" as defined means " the amount of wage or salary (including any over award payment) the worker would have received if he were not incapacitated for work by the injury" - an amount calculated in this case by ascertaining the hours which the worker had ordinarily been working in the employment before the injury, at least until 17th April 1974, and the ordinary amount which he would have received or would receive after the injury for those hours of work had he not been incapacitated. (at p367)

9. This approach was criticized by Burt J. in the Supreme Court. His Honour pointed out that the applicant reads "the ordinary hours he would have worked" as "the hours ordinarily worked", thereby giving no effect to the apparent limitation introduced by the word "ordinary" where it governs "wage or salary" and "hours he would have worked". To overcome this criticism the applicant now says that the presence of the word "ordinary" serves to exclude from consideration some extraordinary rate of remuneration which the worker might receive on special occasions; likewise, it excludes from consideration additional hours which he might work on particular occasions over and above the hours ordinarily worked. It must be acknowledged that the applicant's approach does involve a change in the syntax of the clause, but this seems to be of little importance when other matters are taken into consideration. (at p368)

10. A second criticism is that the applicant's construction gives to cl. 2 the same meaning as had formerly been assigned to the provision which it replaced. In my view this is not a valid ground of criticism, for the old provision consisted of a complex series of rules the effect of which differed, no matter how slightly, from the new provision on the interpretation for which the applicant contends. (at p368)

11. The respondent's suggested construction which found favour with the majority in the Full Court produces more formidable problems. According to this view the compensation payable is referable to the ordinary (standard) rate of pay for the ordinary (non-overtime) hours of work in the particular occupation, whether the employment is regulated by an industrial award or not. Where the employment is regulated by such an award it will fix what are the ordinary hours of work and what is the ordinary rate of pay. Where the employment is not so regulated, other evidence will be required to establish what is standard in the relevant occupation. (at p368)

12. This approach reads the word "ordinary" in the expression "ordinary hours that he would have worked" as referring to hours which attract no additional payment, i.e. for which overtime is not payable; it thereby avoids the conversion from "ordinary" to "ordinarily". This approach has the attraction of providing a measure of compensation easily calculated when the worker is working the ordinary hours each week under an industrial award. It is, however, a very different story when one moves away from this routine situation. (at p368)

13. Special problems arise in the case of a casual or shift worker whose hours of work are remunerated otherwise than by reference to the ordinary rate of pay. Assuming that such a worker intended to continue casual or shift work it could not be said that, if he were not incapacitated, he would have worked any "ordinary hours" in the sense which the respondent gives to that expression. An endeavour was made to vault this yawning chasm by saying that the hours which would have been worked not exceeding the number in a week stipulated in the award should be treated as ordinary hours. However, there is no warrant for this course in the basic interpretation put forward by the respondent. (at p369)

14. Faced with a choice between the two alternatives I prefer that advocated by the applicant. It is subject to grammatical criticism, but this so it seems to me is of less importance than the serious criticism that the competing construction does not enable one to calculate compensation for certain classes of workers, except by deserting that construction when that difficulty arises. (at p369)

15. In reaching this conclusion I am influenced also by the fact that cl.2 refers to the amount of the "ordinary wage or salary" which the worker would have received, that is, the aggregate amount of wage or salary payable for a week's work. It makes no reference to ordinary rates of pay, a concept which lies at the foundation of the respondent's argument. (at p369)

16. For these reasons I would grant special leave and allow the appeal and answer the questions asked in the negative. (at p369)

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.