CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Almanaa v FBS Formwork Group Pty Ltd [2021] NSWPIC 455	
		
APPLICANT:	Abdulazziz Almanaa	
		
RESPONDENT:	FBS Formwork Group Pty Ltd	
		
Member:	Michael Wright	
		
DATE OF DECISION:	15 November 2021	
		
CATCHWORDS:	WORKERS COMPENSATION -  Pre-injury average weekly earnings (PIAWE) dispute in respect of injury on first day of employment with respondent; unsigned statement; consideration of Symbion Health Limited (formerly Mayne Group Limited) v Franks & Linfox Australia Pty Limited; clause 4, schedule 3 of the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation considered; consideration of objective test required for clause 4 and clause 8F; whether award should be basis of clause 8F(1)(b) determination; Held - without proof of application of award clause 8F(1)(b) does not apply and clause 8F(1)(a) applies; oral contract formed and PIAWE determined on basis of oral contract.
	
determinations made:	1.	The applicant’s pre-injury average weekly earnings are $1,859.

STATEMENT OF REASONS

BACKGROUND

1.	This is an application by Mr Abdulazziz Almanaa (the applicant) for an interim payment direction in respect of a dispute as to the amount of pre-injury average weekly earnings (PIAWE) in respect of weekly compensation payable as a result of injury sustained on 30 March 2021 in the course of the first day of his employment with FBS Formwork Group Pty Ltd (the respondent). 

2.	Liability for injury to the left shoulder on 30 March 2021 was accepted by the respondent and weekly compensation payments commenced. Liability for injury to other parts of the applicant’s body was disputed in a section 78 notice dated 1 July 2021 and maintained in a section 287A review dated 5 August 2021. That dispute is not the subject of these proceedings.

3.	In a section 287A review notice dated 20 July 2021, the insurer notified the applicant that it rejected the applicant’s suggested PIAWE and reassessed PIAWE on the basis of an Award rate of $855.18. The applicant disputes that assessment.

PROCEDURE BEFORE THE COMMISSION

4.	At the hearing of this matter on 13 September 2021, the applicant was represented by 
Mr Beran of counsel, instructed by Mr Sawers, solicitor, and the respondent by Ms Prichard, solicitor. The applicant was assisted by an interpreter in the Arabic language.

5.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 

6.	There was no application to cross-examine the applicant nor for oral evidence by a witness.

EVIDENCE

Documentary Evidence

7.	The following documents were in evidence before the Commission and considered in making this determination: 

(a)	Application and attached documents, and

(b)	Reply and attached documents.

Documents

8.	The applicant provided a signed statement dated 10 June 2021 and a signed supplementary statement dated 26 August 2021.

9.	In his signed statement dated 10 June 2021, the applicant said that he was born in Kuwait and was educated to high school in Kuwait and Iraq. He stated that after leaving school he worked as a taxi driver, a barber and later in a supermarket. Mr Almanaa stated that he had been diagnosed with depression from certain specified traumatic events and circumstances that he underwent in Kuwait and Iraq. He came to Australia in 2013 as a refugee and did not work until November 2019 when he worked for a period of one month. He did not work again until he commenced employment with the respondent on 30 March 2021. He sustained injury on the first day of employment with the respondent.

10.	In his supplementary statement dated 26 August 2021, the applicant stated that prior to commencing work with the respondent he had a conversation with Ahmed in which he accepted Ahmed’s offer to pay him $280 per day after tax. The applicant stated that in that conversation Ahmed said to him that the work was full-time from Monday to Friday with overtime on weekends and Ahmed would pay the tax and superannuation. In another conversation, the applicant stated that he accepted Ahmed’s arrangement to commence work with the respondent on the following Tuesday, which was the day that he sustained injury in the course of his employment with the respondent. The applicant also stated that he understood that he was employed to do form working and that the job was full time 40 hours per week, plus over time on Saturdays. The applicant stated that the pay of $280 per day after tax was $1,400 per week net or $1859 per week gross. The applicant said that this was $46.50 per hour. He stated that working time and a half on Saturday for about four hours would be about $279 per week in overtime for a total of $2,138 per week.

11.	Mr Yousef Dib provided a signed statement dated 26 August 2021. He stated that he employed the applicant as a form worker in November 2019 for about one month through his company Statewide Formwork. Mr Dib stated that he paid the applicant $55 per hour. He also stated that he was aware of the applicant’s claim and instructed his accountant to issue payslips for the applicant. Mr Dib stated that his accountant provided the payslips to the applicant but incorrectly reproduced the payslips with the year 2020.

12.	The applicant also provided Pay Advices of Statewide Formwork Pty Ltd for the period commencing “01/11/2020” to “05/12/2020”. These Pay Advices recorded that the applicant was employed on a full-time basis at a rate of $55 per hour. I accept Mr Dib’s explanation that this was an incorrect reproduction, with the correct year being 2019.

13.	The respondent provided an unsigned statement of Ahmad Issa, with a heading date of 7 June 2021. For the reasons given below, I give no weight to that statement, with one qualification noted below. I note that among other matters contrary to, or at least differing from, that of the applicant, the unsigned statement alleged:

“I was advised a week ago by the case officer that Abdulaziz had threatened me, and I was concerned for myself, my brother, and his family. I am not prepared to provide a signed statement because I am concerned with the threats.”

14.	The respondent provided an email of Ms Leanne Rogan, a “Case Management Specialist” of the insurer, dated 31 May 2021. Relevantly, the contents of that email were as follows:

“I have tried to contact you by phone and been unsuccessful so thought I would email yourself to make quick contact and make you aware of updates in regards to the above claim for Abdulaziz Almanaa.
Mr Almanaa has been struggling on many fronts and has become quite agitated. In a conversation he mentioned to myself that he would harm or kill his old boss if he could find an address. While I think this comment was made in anger towards his current situation and frustrations I wanted to advise you of this threat made.

While I am only assuming that he is referring to yourself as the old boss there was no direct use of any names.”

FINDINGS AND REASONS 

15.	The applicant sustained injury on 30 March 2021. The only issue in dispute in these proceedings is the amount of the applicant’s pre-injury average weekly earnings.

16.	The respondent submitted that there was no evidence as to the applicant’s qualifications. The respondent submitted that the earnings submitted by the applicant were at the high-end of the range as a formwork and the applicant’s only evidence of employment was that of a barber, taxi driver and work in a supermarket before working for one month in 2019 for Statewide Formwork. The respondent submitted that the applicant otherwise had no other experience as a formworker and so a reasonable expectation of the amount claimed by the applicant was not supported. The respondent submitted that in the determination of this matter the Commission would rely upon the Award as a matter of public record. The respondent also submitted that if the Award were not to be relied upon then the evidence of Mr Issa was that the expected earnings of the applicant would be $25 per hour for a 40 hour week, that is no more than $1,000 per week. 

17.	In circumstances where a serious allegation has been made against the applicant, that is it is suggested that he has made a threat against a witness, in my view substantiated evidence should be provided. In contested circumstances, an unsigned statement of Mr Issa is in my view is not evidence, other than as confirmation confirming that as director and owner of the respondent he employed the applicant.  is the email of Ms Rogan, without more. The explanation provided for declining to sign the statement was that he had been advised by “the case officer” that the applicant had threatened him. The email relied upon by the respondent was not identified in the unsigned statement of Mr Issa.

18.	It was submitted by the respondent that Mr Issa had a valid reason for not signing the statement, as set out in that part of the statement noted above, having regard to the email of Ms Rogan dated 31 May 2021. I do not accept this submission. Assuming that the unsigned statement was in fact referring to the email of Ms Rogan dated 31 May 2021, that email in my view did not substantiate the threat that was said to have been made. The terms and the context of that conversation that was referred to in the email were not otherwise identified, nor were the specific words said to have been used by the applicant provided. Indeed, 
Ms Rogan appeared to be unsure as to the intent of the words that she said were used, when she said that she thought that the comment was made in anger towards his current situation. Further, the unsigned statement of Mr Issa also referred to concerns he had for himself, his brother and his family and to “threats”. There was no reference in the email of 
Ms Rogan to Mr Issa’s brother and his family, nor to more than one purported “threat”, nor did the unsigned statement of Mr Issa explain why he felt concern for his brother and his family.

19.	Moreover, as submitted by the applicant, the unsigned statement was not logically consistent. The unsigned statement of Mr Issa referred to having received the information of the alleged threat about one week prior to the date noted on the unsigned statement (7 June 2021), but the unsigned statement purported to provide information contrary to the applicant. The question arises as to why that contrary information was provided at all, if in fact Mr Issa had a valid reason as submitted by the respondent. In my view, the reason provided by 
Mr Issa for not signing the statement was not logically consistent.

20.	In my view, the unsigned statement of Mr Issa is not logical and probative and does not conform with rule 73(a) of the Personal Injury Commission Rules 2021. It has been found that it is not permissible in the exercise of the Commission’s discretion to adopt material that does not conform with the rules of evidence where that material fails to conform to the equivalent of rule 73, notwithstanding the broad powers of the Commission in the conduct of proceedings as set out in the equivalent of section 43 of the Personal Injury Commission Act 2020. In these circumstances, the unsigned statement of Mr Issa is not evidence and should not be accepted or adopted. 

21.	In any event, if I am wrong on the rejection of the unsigned statement of Mr Issa, then in my view, it should be given no weight, other than confirming that as director and owner of the respondent he employed the applicant. I am not satisfied that the purported explanation provided in the unsigned statement was adequate reason for not signing, for the reasons noted above.

22.	There was no dispute as to the applicability of clause 4 of schedule 3 of the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation 2016.

23.	Clause 4 of schedule 3 of the Workers Compensation Act 1987 provides:

“Pre-injury average weekly earnings for short-term workers

(1)	If, at the time of the injury, the injured worker had been continuously employed in employment for less than 4 weeks, the pre-injury average weekly earnings in relation to the worker may be calculated having regard to the weekly average of the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.

(2)	The regulations may make provision for the matters to be taken into account for the purposes of determining the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.”

24.	Clause 8F of the Workers Compensation Regulation 2016 provides:

“Pre-injury average weekly earnings for short-term workers—Schedule 3, clause 4(2) of 1987 Act

(1)	In determining the earnings that a worker could reasonably have been expected to have earned in employment for the purposes of clause 4(1) of Schedule 3 to the 1987 Act, the following matters are to be taken into account— 

(a)	any contract of employment made before the date of the injury,

(b)	any award or agreement relating to the employment,

(c)	any hours worked or earnings received by the worker during the period of 52 weeks before the injury.

(2)	If the consideration of those matters does not reasonably assist in determining the earnings that the worker could reasonably have been expected to have earned in the employment, the earnings are to be determined by having regard to the average weekly amount earned during the period of 52 weeks before the injury by other persons for the performance of similar work as the worker (whether or not with the worker’s employer).”

25.	There being no accepted evidence to the contrary, I accept the applicant’s statement as to the formation of an oral contract between the applicant and the respondent prior to the injury. In my view, the signed statement of Mr Dib confirms the extent of the hourly rate given by the applicant in his statement. The respondent pointed to an inaccuracy in the pay period dates provided by Statewide Formwork, in that the Pay Advices referred to November “2020”, rather than “2019”, which was when the applicant worked for that company. I accept the statement evidence of Mr Dib and I accept his evidence in this regard as to the hourly rate of pay and the nature of the duties performed by the applicant for his company, which in my view were effectively the same as those of the duties provided for in the oral contract of employment with the respondent.

26.	However, in my view the expectation of overtime referred to by the applicant in his statement may or may not have eventuated. In order for there to be a reasonable expectation of regular overtime of four hours per week on a Saturday, there would need to be evidence specifically relating to the employment circumstances with the respondent such as that of a fellow worker or other records. Without such evidence, this is a speculative exercise and, in my view, a reasonable expectation of overtime has not been established. 

27.	In my view, the words “earnings that the worker could reasonably have been expected to have earned in the employment” in clause 4 require an objective test, rather than the worker’s subjective belief or expectation. That is, there should be evidence as noted above. The applicant’s expectation that he would perform and receive overtime does not in my view satisfy the objective test.

28.	I do not accept the respondent’s submissions as to the applicant’s employment background and experience as a formworker. The evidence established that the applicant was employed performing formwork duties both for the respondent and previously for Statewide Formwork. The evidence also established the oral contract that the applicant had with the respondent for earnings of $1,859 per week for 40 hours, an amount that was somewhat less than the amount that he earned while employed with Statewide Formwork. In my view this satisfies the objective test of the earnings that the applicant could reasonably have expected to have earned with the respondent. There was no evidence before me as to the range of earnings of a formworker, nor what the earnings were at the “high end”. There is no evidence that the applicant was required to have qualifications and indeed the oral contract and the statement of Mr Dib did not suggest that was the case. Where the applicant has established objectively the basis for reasonable expectation, that is both the oral contract and hourly and weekly rates for the specific employment duties in question, with confirmation in prior employment, in this case it is not necessary to consider the nature and extent of other prior employment. The applicant in this case has simply established that he had a reasonable expectation of earnings in performing formworking duties with the respondent, duties which he had previously performed with Statewide Formwork.
29.	In relation to clause 8F(1)(a), I have found that the applicant entered into an oral contract of employment with the respondent prior to the injury. Relevantly this was for an amount of $1,859 gross per week, for a 40 hour week, not including overtime.

30.	In relation to clause 8F(1)(b), the respondent relied upon its section 78 notice in which it nominated the applicable award as being the Building and Construction General On-site Award (the Award). However, a copy of the Award was not before me in these proceedings. The respondent submitted that the Award is a matter of public record and regard should be had to the Award on that basis. That may be the case, although in proceedings in the Commission, it would be preferable for copies of the relevant definitional, classification and pay rate provisions to be provided for practical purposes. In any event, it was not established that the Award applied to the employment arrangements between the applicant and the respondent. In my view, it is insufficient to simply nominate an award without evidence as to its application to the employment arrangements between the applicant and the respondent. 
I accept the applicant’s submissions in this regard.

31.	In relation to clause 8F(1)(c), the evidence was that the applicant was not employed in the period of 52 weeks prior to the injury, other than his first day of employment with the respondent. His employment with Statewide Formwork preceded the 52-week pre-injury period. I accept the respondent’s submissions in this regard. However, the statement evidence of Mr Dib, and the Pay Advices of his company Statewide Formwork Pty Ltd, in my view are relevant to consideration of clause 8F(1)(a), that is in respect of an hourly rate of pay provided for in the oral agreement with the respondent which was somewhat less than that paid by Mr Dib’s company to the applicant, but which supported the applicant’s statement as to his hourly rate of pay that he accepted as part of the oral contract of employment with the respondent.

32.	In my view, consideration of clause 8F(1)(a) reasonably assists in the determination of the relevant earnings and clause 8F(2) does not apply.

33.	I find that the applicant’s pre-injury average weekly earnings were $1859.

34.	The application in this matter was originally for an interim payment direction. An interim payment direction is not available in this case where the dispute does not come within the terms of section 297(1A) of the Workplace Injury Management and Workers Compensation Act 1998, that is the dispute does not concern a decision by the insurer to “discontinue or reduce weekly payments of compensation”, and hence the 12 week restriction of section 298 would otherwise continue to apply. In my view, a dispute as to the amount of pre-injury average weekly earnings is not a decision to discontinue or reduce weekly payments of compensation. As I indicated at the hearing of this matter, this is therefore a matter for determination by me as a member the Commission.