DECISION OF PRESIDENT’S DELEGATE  	

Citation:	
Hull v RSL Care RDNS Limited [2022] NSWPIC 483	
		
APPLICANT:	Arohaina Hull		
		
RESPONDENT:	RSL Care RDNS Limited	
		
PResident’s Delegate:	Parnel McAdam	
		
DATE OF DECISION:	25 August 2022	
		
CATCHWORDS:	Calculation of pre-injury average weekly earnings (PIAWE); applicant a short-term worker; consideration of clauses 2 and 4 of Schedule 3 to the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation 2016; consideration of what worker could have expected to earn. 	
Orders made:	The President directs:
1.	The applicant’s pre-injury average weekly earnings figure is $1,247.55. 
2.	The above figure is to be indexed from time to time in accordance with the legislation. 
3.	The respondent is to pay the applicant weekly compensation, with appropriate adjustments for amounts paid, in accordance with the figure in [1]. 	

STATEMENT OF REASONS
BACKGROUND
1.	Ms Hull (the applicant) is a single parent to four children who retrained and gained financial freedom for herself. She commenced work with the respondent not long after completing her studies. She was employed on a permanent part time basis as a personal care worker in an aged care facility. Ms Hull commenced work on 29 September 2020. 
2.	Unfortunately Ms Hull suffered an injury on 16 October 2020. She persevered with work for some months until 10 January 2021, when the pain became unbearable and she ended up in the emergency department. At that point, Ms Hull’s capacity was downgrade to nil, and she has been unable to work since then. 
Issues in dispute
3.	This dispute concerns the calculation of Ms Hull’s pre-injury average weekly earnings (PIAWE).   
The legislation
4.	Ms Hull’s payments have been made under ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). The relevant sections in issue in this matter are cl 2 and 4 of sch 3 to the 1987 Act. Clause 2 provides: 
“Meaning of ‘pre-injury average weekly earnings’
(1)  Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2)  Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3)  The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a)  to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b)  to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4)  If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
5.	Clause 4 of sch 3 to the 1987 Act 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.”
6.	Clause 8F of the Workers Compensation Regulation 2016 (the 2016 Regulation) 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).”
The evidence
7.	I have reviewed all of the evidenced lodged by the parties attached to the Application for Expedited Assessment (the Application) and Reply. The key documents relevant to the determination of the issues in dispute are discussed below. The evidence in this matter is largely uncontroversial. The substantive issue in dispute concerns statutory interpretation of the short-term worker provisions in sch 3 to the 1987 Act and the 2016 Regulation.  
The decision notices
8.	There are three relevant decisions made by icare (the respondent’s insurer) attached to the Application. The first, dated 16 February 2021, is an acceptance of provisional liability.  The PIAWE in that decision was said to be $1,139.66.
9.	The applicant sought review of that decision on 15 December 2021. On 29 December 2021, the review was completed. That review resulted in a reduction in weekly payments based on a PIAWE of $1,051.35. 
10.	A further review was sought on 11 May 2022. On 25 May 2022, the review decision confirmed the previous calculation of PIAWE resulting in no change. 
11.	These notices and review requests interpret the calculation of PIAWE in different ways based on Ms Hull’s status as a short-term worker. 
12.	I note here that due to the decision on 29 December 2021 reducing Ms Hull’s weekly payments, my jurisdiction to determine this matter is enlivened, under s 297(1A) of the 1998 Act, which concerns a decision by the insurer to discontinue or reduce weekly payments of compensation. 
Payslips
13.	Attached to the application are various payslips commencing with the pay period 23 September 2020 to 6 October 2020, through to 3 November 2021 to 16 November 2021. 
The applicant’s statement
14.	Ms Hull’s statement sets out her education and training, in particularly noting her qualifications obtained as a Certificate III in Individual Support in Ageing, and commencing employment with the respondent. 
15.	Ms Hull also sets out her pre-employment history as a “full time single mother” to four children. 
16.	Ms Hull explains her contract for 20 hours per week, but how she would regularly work in excess of that amount. Her fortnightly roster is set out. The circumstances of Ms Hull’s injury is provided, as well as treatment and current disabilities. Ms Hull’s statement concludes with her concerns about her financial stability and an emphasis that her earnings prior to injury do not accurately represent her future lost earnings. 
Submissions
17.	The matter did not resolve at teleconference. Due to the issues in dispute and the required consideration of the appropriate interpretation of the relevant legislative provisions, I issued a Direction calling for written submissions. The applicant provided submissions on 1 August 2022. The respondent provided submissions in response on 9 August 2022.  
Applicant’s submissions
18.	The applicant identifies that the sole issue to be determined is the correct calculation of PIAWE. The applicant commenced work on 29 September 2022, and suffered injury on 16 October 2020. She accordingly worked for a period that ran over 17 days prior to her injury. 
19.	The applicant outlines the relevant sections of the 1987 Act and the 2016 Regulation. The applicant submits that the calculation of PIAWE for a short-term worker that only takes account of their earnings may not reflect earnings over a longer period. This is because earnings may be assessed by seasonal factors, probation, etc, and could lead to an unfair result for a worker. 
20.	The applicant notes that the parties agree that cl 8F(1) of the 2016 Regulation applies as the evidence provided in the payslips assist in determining what the applicant could reasonably have expected to earn. 
21.	The applicant’s evidence is that she was employed on a permanent part-time basis contracted for 20 hours per week, but had a set roster. The applicant sets out what shifts she worked in the 17 day period, which included some weekend loadings. The applicant submits that there is no evidence from the respondent to dispute what she says about her roster. 
22.	The applicant goes on to make some calculations, which will not be repeated here, that she submits equates to $165.54 per day or $1,158.79 per week. The applicant then makes some further calculations, taking into account weekend shifts and overtime, for a figure of $171.40 per day or $1,198.80 per week. The applicant submits that this is the PIAWE unless it is appropriate to consider likely earnings in the 52 weeks following injury. 
23.	The applicant submits that she intended to perform regular overtime. The staff could do as much work as they could handle and the respondent was always short staffed. The conclusion from the evidence is that regular overtime and additional shifts were available. 
24.	The applicant submits that she would have worked an additional two morning shifts, two afternoon shifts, and a weekend shift per fortnight, being an additional 14 hours of normal shifts plus 3.5 hours of weekend shifts. 
25.	If the above is accepted, the applicant would have earned an additional $455.85 per week. 
26.	The applicant submits that the period before her injury she was still in training in her first employment since attaining her qualifications. She would have started to pick up extra shifts once she’d settled in. 
27.	The applicant submits that this is a case where looking at the earnings during a 17 day period does not reflect what would have occurred and it is appropriate to consider what the applicant would have earned in the 52 weeks following injury. 
28.	The applicant submits that if I do not accept that she would have worked all of the additional shifts she intended, it would nonetheless be reasonable to consider that she would have worked one or two additional shifts per week and adjust accordingly. The schedule allows for some discretion. Accordingly, there should be an increase in PIAWE. 
Respondent’s submissions
29.	The respondent commences by setting out their position generally. The respondent submits there is no proper basis to depart from the methodology in cl 8F of the 2016 Regulation, and the regulation provides certainty and uniformity where matters would otherwise be quite variable. 
30.	The respondent refers to Sch 3 of the 1987 Act which provides that the following “are” to be taken into account: 
(a)	the worker’s contract of employment; 
(b)	any award or agreement relating to the employment, and
(c)	the hours worked and earnings received prior to injury. 
31.	It is only if these matters “do not reasonably assist” that regard should be had to cl 8F(2) and amounts earned by other workers for the performance of similar work. The respondent agrees that cl 8F(2) cannot apply. The respondent submits that the legislation does not refer to what a worker hoped or planned to do, but what a worker could “reasonably have expected” to earn. 
32.	The respondent submits that there is no proper basis to adopt the methodology argued for by the applicant, which appeals to intangibles about what she says she “would” have worked, that do not accord with cl 8F. The respondent submits that they adopted the correct methodology in the review notice dated 29 December 2021, by looking at the amounts earned by the applicant prior to injury. In this matter, the applicant’s contract guaranteed 20 hours per week, but did not employ her on a full time basis or guarantee overtime. The applicant is asking the Commission to accept that she would have worked full time hours and in fact would have worked 21 hours of additional overtime each fortnight. The respondent submits that the correct PIAWE is $1,112.57 as set out in the review notice.
33.	The respondent submits that the applicant is asking for impermissible inferences to be drawn. The respondent also disagrees with the calculations proposed by the applicant, making submissions concerning the inclusion of:
(a)	public holiday pay; 
(b)	a shortened period;
(c)	the inclusion of weekend shift allowances, and
(d)	the expectation of overtime. 
34.	The respondent provides its version of the calculations submitting that the review notice already contained a beneficial construction. The respondent goes on to concede that the period in the review notice was incorrect by one day, and proposes an alternative calculation of $1,123.04 per week.  
Discussion
35.	The applicant refers to Sch 3 to the 1987 Act which provides for the definition of PIAWE, in particular, cls 2 and 4. Clause 2 defines PIAWE. Clause 4 provides 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.”
36.	Clause 8F of the 2016 Regulation also provides further guidance for short-term workers, as envisioned by cl 4 of Sch 3 to the 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).”
37.	The issue in dispute in this matter raises three general considerations:
(a)	statutory construction of the relevant provisions;
(b)	the evidence provided, and
(c)	calculation of PIAWE. 
Statutory construction
38.	The calculation of PIAWE is now provided for in Sch 3 to the 1987 Act. Clause 2 provides a general definition of PIAWE, being:
“Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.”
39.	The challenge in this case, and in circumstances like those experienced by Ms Hull, is that she was injured very shortly after commencing employment. Her pay slips, potentially, do not properly reflect her PIAWE. Clause 4 of Sch 3 to the 1987 Act accounts for these types of circumstances, described as “short-term workers”. Prior to her injury, Ms Hull had been “continuously employed in employment for less than 4 weeks”. 
40.	In Military Rehabilitation and Compensation Commission v May [2016] HCA 19, the Court stated that the “question of construction is determined by reference to the text, context and purpose of the Act”, with reference to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41. 
41.	I make some observations about the statutory construction of the question in consideration. PIAWE is generally calculated by looking at the “weekly average of the gross pre-injury earnings received by the worker”. Both parties have provided submissions in that regard, and the evidence attached includes payslips for the period prior to (and following) Ms Hull’s injury. This is a general provision. 
42.	There exists a specific provision dealing with “short-term workers” that I have outlined above. Where there is a conflict, the specific provision will prevail (based on the maxim, now rarely used of “generalia specialibus non derogant”, see Commissioner of Police v Eaton [2013] HCA 2 at [21]). 
43.	However, in present circumstances the specific provision is a discretionary one. Clause 4(1) provides that PIAWE “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”.
44.	Clause 4 also points to the 2016 Regulation “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”. Through that, one gets to cl 8F of the 2016 Regulation. 
45.	Clause 8F(1) is not discretionary and provides for matters 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, and
(c)	any hours worked or earnings received by the worker during the period of 52 weeks before the injury.
46.	The parties agree that cl 8F(2) (being the consideration of the earnings “other persons for the performance of similar work as the worker”) does not apply.   
47.	The existence of a discretionary factor in cl 4 of Sch 3 to the 1987 Act suggests that in some circumstances, the calculation of PIAWE would be in accordance with cl 2, that is by calculating “the weekly average of the gross pre-injury earnings received by the worker”. 
The evidence
48.	The evidence relevant to the consideration before me is limited. There are payslips for the period prior to the work injury, and for the period up until the worker became fully incapacitated. 
49.	The only evidence going to what the worker “could reasonably have been expected to have earned” is the applicant’s statement. I do not have a copy of the applicant’s contract before me (a relevant consideration per cl 8F of the 2016 Regulation) but based on the parties’ submissions, it appears agreed that Ms Hull was contacted to work 20 hours per week. Her payslips make it clear she worked on or around full time hours before her injury. I do not think her contract would provide much assistance. 
50.	I have also not been provided with the relevant award or agreement applying to the worker, although again, given the issues in dispute, I cannot see how this would be of much relevance.  
51.	It is really only the third factor in cl 8F that I have any evidence concerning. That evidence comes from the payslips attached to the Application and Reply, as well as Ms Hull’s statement, which explains the roster system at the respondent. 
52.	The evidence is clear in one regard: Ms Hull was working in excess of her contract hours of 20 hours per week. The respondent has, quite rightly, not suggested that PIAWE be calculated in accordance with her contract. 
53.	Ms Hull refers to what occurred after her injury: “Despite my injury, I managed to work my rostered hours”. This is not a relevant consideration, per cl 8F. Ms Hull’s statement indicates that “she would have worked additional shifts” had she not suffered her injury. Ms Hull sets out her plan to pick up the following per fortnight:
(a)	two additional afternoon shifts (of 6 hours per shift);
(b)	two additional morning shifts (of 8 hours per shift), and
(c)	two additional weekend shifts and one to two split weekend shifts. 	
54.	The applicant’s submissions calculate this to be an additional 14 hours per week of normal shifts plus an additional 3.5 hours of weekend shifts per week. 
55.	Ms Hull’s statement also discusses, in brief, her personal background, including her education and training. Of particular relevance is the fact that Ms Hull has four children, of ages ranging from 4 to 10 years old, and the fact that she self describes as a “full time single mother”. 
56.	The respondent addresses this issue briefly. The respondent notes that Ms Hull asserts that she would be working three out of every four weekend days per fortnight, despite her family commitments. The respondent submits that this is not feasible, nor borne out by the evidence. The respondent submits that the Commission needs to have regard to evidence that is logical and probative, and the applicant’s statement does not explain how, logistically, she would have worked an additional 21 hours per fortnight and three out of four weekend days. There is no supportive wage or witness evidence to confirm she would have done so. 
57.	I find the respondent’s submissions persuasive. The only evidence I have before me concerning this issue is the applicant’s statement, where, as discussed, Ms Hull is described as a “full time single mother”. The care of her children whilst working is not addressed at all. I have great difficult accepting the contention, without supporting evidence concerning childcare arrangements, that a single parent with sole responsibility for four children, the oldest of whom is 10, would be able to work the amount of overtime claimed, and particular the weekend shifts claimed. It must be remembered, as the respondent points out, that the applicant bears the onus of proof in that regard.
58.	Accordingly, I do not accept the applicant’s proposition that she would have worked the amount of hours set out in her statement and submissions. This goes directly to what the applicant would have expected to earn.  
The calculation of PIAWE
59.	As indicated above, I have before multiple interpretations of the correct calculation of PIAWE, based on the hours Ms Hull actually worked prior to her injury. The parties have each come up with a different calculation of PIAWE based on Ms Hull’s earnings prior to her injury and the hours or weeks worked in that period. 
60.	Ordinarily, this would be the appropriate methodology, consistent with cl 2 of Sch 3 to the 1987 Act. In the present case, this has proved problematic for the parties as Ms Hull was a short-term worker. The respondent submits that their calculations (which are lower than the applicant’s) already provide a benefit to the worker, in that they include a public holiday shift (which attracts a 150% loading).   
61.	Given the complications and issues with calculating PIAWE for a short-term worker, cl 4 of Sch 3 allows for calculation with reference to “what the worker could reasonably have been expected to have earned in the employment”. There are factors in this case that make the calculation with reference to cl 4 more concrete:
(a)	Ms Hull’s hourly rate, at the base of $23.154 per hour; 
(b)	Ms Hull’s roster, set out in her statement, which was uncontested and reflects the hours worked in the pre-injury period, and
(c)	the loading amounts for things like weekends, public holidays, and overtime.
62.	Ms Hull’s hourly rate, recorded in her payslips, was $23.154 per hour. There are various different loadings or entitlements outlined in the payslips: 
(a)	overtime, at “T1.50” (which I presume is 1.5 time, that is for every hour worked, 1.5 hours are paid). Overtime appears to be a separate record of hours worked, rather than an additional allowance. This is recorded as “factor” on the payslips of 1.5;
(b)	public holiday at “150%”, again a separate record of hours worked, which is a recorded as a factor of 1.5;
(c)	“Saturday loading 50%”, recorded as a factor of 0.5. This appears to be an additional allowance rather than a record of hours worked. By that I mean the “qty”, records the number of hours worked, already included in the record of “ordinary time”;
(d)	“Sunday loading 75%”, a factor of 0.75, again an additional allowance, and
(e)	“Shift loading 23.5%”, with a factor of .235, again an additional allowance.
63.	I have taken the above information from the first two payslips, which cover the period prior to (and just after) Ms Hull suffered her injury. In total, in that period, Ms Hull worked: 
(a)	ordinary time – 127.42 hours, inclusive of: 
i.	6.5 hours of Saturday loading;
ii.	7.5 hours of Sunday loading;
iii.	13.5 hours of shift loading; 
(b)	overtime – 1.88 hours; 
(c)	public holiday – 7.5 hours, and 
(d)	training – 0.33 hours.
64.	This equates to 137.13 hours worked, for an average of eight hours per day.  
65.	However, Ms Hull was injured prior to the end of the second pay period (which ran from 7 October 2020 to 20 October 2020), on 16 October 2020, which was a Friday. Ms Hull commenced work on 29 September 2020, which was a Tuesday. That is (as agreed by the parties) a period of 17 days, or 2.42 weeks. 
66.	Based on the roster information contained in Ms Hull’s statement, she would have worked Tuesday to Friday in her first week, then Thursday to Sunday in her second week, then Monday to Friday in her third week, suffering her injury on that Friday. This appears to be nine days on, five days off roster on a fortnightly basis. 
67.	Averaging all of that out, Ms Hull would have expected to work, according to her roster, (taking into account only then evidence before me in the payslips, and not including what 
Ms Hull anticipated working once she settled in), each fortnight:
(a)	one Saturday;  
(b)	one Sunday; 
(c)	seven ordinary days, including:
i.	two days with shift loading;
ii.	five days without shift loading, and
(d)	two hours of overtime. 
68.	If each shift was eight hours (which is an average borne out by the evidence), then she would have expected to earn, including appropriate loadings (based on the numbering above):
(a)	$277.85;
(b)	$324.16;
(c)	the figures of: 
i.	$457.52;
ii.	$926.16, and 
(d)	$69.46.   	
69.	This equates to $2,055.15 per fortnight, or $1,027.58 per week. This figure is lower than that calculated by both the applicant’s figure of $1,168.79 and the respondent’s figure of $1,112.57. Both figures have included one public holiday in the pay period (being the Labour Day public holiday on 5 October 2020). The inclusion of one day of public holiday pay, instead one ordinary day worked, would increase the figure slightly, to around the respondent’s figure. There are 13 public holidays per year, and Ms Hull would expect to work on most (but not all) of those, say 10 of the 13 days. That would equate to an additional 0.2 hours per week, when including the factor of 1.5, roughly an additional 0.5 hours per week. I will add an additional $11.58 to the PIAWE to account for those public holidays each year, for a base figure of $1,039.16 per week.    
70.	I have indicated above that I am unable to accept the applicant’s primary position that she would have worked extensive additional hours. However, I am of the view that Ms Hull would have expected to work some overtime each week, perhaps in the range of one afternoon shift from 3.00pm to 9.00pm per week. This would be an additional six hours per week at the overtime rate of a 1.5 factor, or $208.39. This would bring Ms Hull’s PIAWE up to $1,247.55 per week. 
71.	In all of the circumstances, considering the factors in cl 8F of the 2016 Regulation, the hours actually worked by Ms Hull prior to her injury, what she would have “expected to earn” each week and the evidence before me, I am satisfied that that figure is an appropriate amount. 
72.	Accordingly, I will make an award for the applicant in that regard, to be indexed from time to time.