About time: Court provides further guidance on including overtime in the calculation of weekly payments

Background

The worker lodged a claim for workers’ compensation payments pursuant to the Workers’ Compensation Injury Management Act 1981 (WA) (the WCIM Act) following an injury sustained to his back and head, in the course of his employment.

Liability was accepted, however, the parties disputed the calculation of weekly payments following “step down” after 13 weeks. In contention, was whether regular payments of overtime are included in weekly earnings for which compensation is to be paid.

Relevant law

Section 18 of the WCIM Act requires an employer to pay compensation in accordance with Schedule 1 where an injury occurs. The amount payable after the first 13 weeks is defined with reference to ‘Amount Aa’.

‘Amount Aa’ is relevantly defined as the rate of weekly earnings payable, at the time of the incapacity, and includes:

Arbitration

The Arbitrator ruled that ‘overtime’ payments were an ‘allowance’ for the purpose of the definition of ‘Amount Aa’, and were therefore included in the calculation of weekly payments.

The primary judge affirmed the Arbitrator’s decision on appeal.

Appeal to the Supreme Court

BGC (the Appellant) contended that the WCIM Act, when properly construed, does not support the finding that ‘overtime’ constitutes an ‘allowance’. The Appellant submitted that such a construction is contrary to the statutory text, which treats the terms ‘overtime’ and ‘allowance’ or ‘any bonus or allowance’ as separate and distinct terms.

The Supreme Court of Appeal affirmed the ruling of the Arbitrator and primary judge. The reasons for the finding are succinctly summarised as follows:

1. overtime payments are not excluded by the ordinary meaning of the term ‘allowance’;
   
   
2. when construed as a whole, clause 11 of Schedule 1 of the WCIM Act does not distinguish ‘overtime’ and ‘allowance’ as two mutually exclusive concepts; and
   
   
3. the interpretation is consistent with the approach adopted by Justice Wheeler in EG Green & Sons Pty Ltd v Sabourne,¹ who observed that an ‘allowance’ in subparagraph (b) of ‘Amount Aa’ is capable of including overtime payments “which satisfied the twin conditions of being paid on a regular basis”.²

The appeal was dismissed.

Implications

While the Court held that overtime payments were an allowance in this instance, it clarified that overtime payments will not automatically fall within the calculation of ‘Amount Aa’. The Court observed that whether overtime payments form part of weekly earnings requires consideration of whether the payments are paid on a regular basis.

The Court indicated that where the condition of being paid on a regular basis is satisfied, the overtime payments will ordinarily form part of the workers’ compensable weekly earnings.

This case law update is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.

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¹ [2009] WASCA 172.
² Ibid [21].