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- Unreported Judgment
INDUSTRIAL COURT OF QUEENSLAND
JBS Australia Pty Ltd v Workers’ Compensation Regulator  ICQ 010
JBS AUSTRALIA PTY LTD
WORKERS’ COMPENSATION REGULATOR
18 June 2020
15 January 2020
Martin J, President
The appeal is dismissed.
INDUSTRIAL LAW – QUEENSLAND – DEFINITIONS AND INTERPRETATION – where a worker employed by the appellant was injured at work – where the appellant was a self-insurer – where the appellant declined the worker’s application for compensation on the basis that she was a seasonal worker, that the appellant’s business had closed for an annual shutdown and so the worker was not entitled to any payment – where the respondent set aside the appellant’s decision and substituted a decision that the worker was entitled to compensation – whether s 147 of the Workers’ Compensation and Rehabilitation Act 2003 supported the appellant’s contention that it was not required to pay any compensation when its business closed
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – where s 147 of the Workers’ Compensation and Rehabilitation Act 2003 contains the words “if the worker were at work” – where the words “if the worker were at work” are expressed in the subjunctive mood – whether the words “if the worker were at work” require any actual work to be performed for s 147 to have effect
Workers’ Compensation and Rehabilitation Act 2003, s 107B, s 147
2 Elizabeth Bay Road Pty Ltd v Owners - Strata Plan No 73943 (2014) 88 NSWLR 488, cited
G J Cross instructed by HBA Legal for the appellant
P B O’Neil instructed directly by the Workers’ Compensation Regulator
- Kay Bire was employed by the appellant at the JBS Meatworks. She was injured. She sought compensation from the appellant, a self-insurer. The appellant declined her application on the basis that she was a seasonal worker, that the meatworks had closed in accordance with its usual annual shutdown and so she was not entitled to any payment.
- The issue in this appeal is whether s 147 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) supports the appellant’s contention that it is not required to pay any compensation when the meatworks closes.
- The facts upon which the Deputy President was asked to proceed were set out in the appellant’s written submissions before him.
“Factual Background Not In Issue
- The Worker was born on 5 August 1962.
- By application for compensation dated 29 June 2016 the Worker sought compensation in respect of an injury suffered over a period of time to 27 June 2016.
- The Worker’s Application for Compensation was subsequently accepted.
- The nature of the injury that was the subject of the Application for Compensation dated 29 June 2016 was a right shoulder burning pain due to conditions arising from repeated use of the shoulder.
- The Worker was a ‘seasonal worker’ employed on a ‘daily hire basis’ and it was the site practice of the Appellant to formally terminate the engagement of daily hire workers at the end of the annual season. The amount payable to daily hire employees following seasonal shut down is $NIL.
- By Notice to all Workers dated 13 December 2016, workers were advised of the dates of the last kill, being 15 December 2016, and the last bone on 16 December 2016, and that notices relating to reopening would be advertised in the Townsville Bulletin and on local radio prior to the start of the 2017 season, with that date dependent on weather and cattle availability.
- In a letter to the Worker dated 16 December 2016, this information was reiterated and a date for final payment of compensation including accrued annual leave and personal carer’s leave was advised. The letter confirmed the Worker’s employment had been terminated by reason of the seasonal plant shutdown for 2016.
- The Appellant’s meat works closed on 16 December 2016 and did not reopen again until 22 March 2017.
- For the period 16 December 2016 to 22 January 2017 and 6 March to 22 March 2017 the Worker was certified as partially incapacitated for work.
- For the period 23 January 2017 to 5 March 2017 the Worker was certified as totally incapacitated for work.
- By letter from the Appellant to the Worker dated 26 June 2017 the Appellant confirmed that it had reduced the Worker’s rate of pay to nil as at 16 December 2016 for the seasonal closure, in accordance with sections 168, 150, 107B and 147 of the WCRA.
- The Worker had not submitted any evidence to support that she would have, but for an injury, gained employment from any other employer or endeavour.
- The Worker had not secured other employment during the shutdown period for the previous four to five (4-5) years before the date of the injury being 27 June 2016.
- The Worker did not receive weekly payments of compensation for the period of closure of the Appellant’s meat works from 6 December 2016 until the Respondent’s Review Decision.
- The Regulator by Reasons for Decision dated 15 November 2017 (the Reasons for Decision) set aside the decision of the Appellant to decrease the Worker’s rate of weekly compensation to $0 from 16 December 2016 to 21 March 2017. The Regulator substituted a new decision that the worker had an entitlement to compensation in accordance with s 163 of the WCRA for the periods 16 December 2016 to 22 January 2017 and 6 March to 22 March 2017 (the period of partial incapacity).
- By the Reasons for Decision dated 15 November 2017, the Regulator also set aside the decision of the Appellant to calculate the Worker’s rate of weekly compensation to $0 from 23 January 2017 to 5 March 2017, and substituted a new decision that the Worker had an entitlement to compensation in accordance with s 150 of the WCRA (the period of total incapacity).
- On 13 December 2017, the Appellant lodged the current Notice of Appeal with the Queensland Industrial Relations Commission.”
Relevant legislative provisions
- The employee was employed pursuant to a certified agreement. It was not in evidence.
- Section 108 of the Act provides:
“108 Compensation entitlement
- Compensation is payable under this Act for an injury sustained by a worker.
- However, if a worker’s injury is an aggravation mentioned in section 32(3)(b) or (ba), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation.
See also division 5 in relation to the effect of compensation on a worker’s leave entitlements.
- Section 109(1) provides that an employer who is a self-insurer must pay the compensation.
- Section 144A sets out when weekly payments of compensation are to stop:
“144A When weekly payments of compensation stop
- The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens—
- the incapacity because of the work related injury stops;
- the worker has received weekly payments for the incapacity for 5 years;
- compensation under this part reaches the maximum amount under part 6.
- If subsection (1)(b) or (c) applies, the worker’s entitlement to further compensation for the injury stops.
- Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A.
- This section does not limit another provision of this Act that stops weekly payments.”
- Part 9 of Chapter 3 of the Act deals with weekly payment of compensation. Section 145 provides:
“145 Application and object of pt 9
- This part applies if a worker is totally or partially incapacitated because of injury for which compensation is payable.
- The object of this part is to provide for weekly payments to the worker during the period of incapacity.”
- The section the subject of this appeal is s 147:
“147 Worker can not receive more than if injury had not been sustained
- A worker must not receive an amount under this part that is more than the worker would have received from the worker’s employment if the worker were at work and the injury had not been sustained.
- Subsection (1) has effect despite any other provision of this part.”
The decision appealed from
- Deputy President Bloomfield dismissed the appellant’s argument and held that s 147 did not preclude the worker from receiving compensation in the circumstances of this case. The Deputy President held:
- the worker was entitled to workers’ compensation payments, calculated in accordance with the provisions of s 150 of the Act, for the period 23 January 2017 to 5 March 2017 during which time she was totally incapacitated for work, and
- the worker was entitled to workers’ compensation payments, calculated in accordance with the provisions of s 162 and s 163 of the Act, for the periods 16 December 2016 to 22 January 2017 and 6 March 2017 to 21 March 2017, respectively, during which time she was partially incapacitated for work.
The appellant’s argument
- On this appeal, the appellant argued:
- that the logical and natural extension of the meaning and effect of s 147 is that an employee who is engaged by the appellant in a seasonal meat works on a daily hire basis will lose an entitlement to weekly compensation at the same time that other workers at that plant lose their entitlement to a weekly income by reason of a seasonal closure,
- further, because the worker would not have exercised her earning capacity in the shutdown period, it was another reason for the refusal to pay her any compensation, and
- partial incapacity payments were not payable as she would not have been expected to derive earnings in the period of the shutdown regardless of her incapacity.
Principles of construction
- The words of a statute should be given their natural and ordinary meaning. This general principle was expressed in the following way by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection:
“14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (citations omitted)
- The “natural” meaning of a word or phrase is its grammatical meaning in the context in which it appears.
- The authorities are clear, that in considering the text of a provision, the focus is not simply on the meaning of individual words. It was put this way in 2 Elizabeth Bay Road Pty Ltd v Owners - Strata Plan No 73943:
“ … It is axiomatic that: (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence.”
What does s 147 mean?
- In the Explanatory Notes for the Workcover Queensland Bill 1996, the predecessor to this section was said to have the purpose of removing an incentive for workers to remain on compensation. It was observed that this incentive had previously arisen in some seasonal industries where a worker’s weekly compensation was based on average weekly earnings that included excessive abnormal overtime. Other parts of the Act specifically dealt with those situations and this section was intended to supplement those provisions.
- The appellant contends that, while the Act has an overall beneficial object, s 147 is not beneficial in nature. The appellant argues that the section, when properly understood, asks the question: “Will the worker receive more than she would have received if she was at work and had not been injured?”
- The argument for the appellant concentrates on the issue of what a worker might have received if she was at work. The appellant says that, as there was no work to be performed, then she would have received nothing. The error, with respect, in that argument is that it overlooks the proper grammatical construction or syntax of s 147.
- The words “if the worker were at work” are expressed in the subjunctive mood. One of the uses of the subjunctive mood is to demonstrate a counterfactual condition. That is what is intended here. It was pointed out in Forsyth v Deputy Commissioner of Taxation that the subjunctive can be, and in that case was, used to indicate an hypothesis. The hypothesis expressed in s 147 is that the worker would have been at work. It does not require that there be any actual work to be performed for the section to have effect.
- Some examples can demonstrate how this might operate:
- (a)If an employer company were to be wound up, then s 147 would not prevent a worker of the former company receiving compensation.
- (b)If an enterprise were to close down because of a pandemic, then a worker on compensation would continue to receive payment.
- (c)If an enterprise discontinued a distinct part of its operations and made all the employees in that part redundant, compensation would continue to be payable.
- The continuation of payments is not conditional upon the continued operation of the employer.
- Further support for this construction can be found by examining the context of s 147. Section 147 is contained within Chapter 3, Part 9 of the Act. In that Part, s 145 provides:
“The object of this part is to provide for weekly payments to the worker during the period of incapacity.”
- Section 144A sets out the circumstances in which those weekly payments stop. Section 144A(5) provides that this section does not limit “another provision of this Act that stops a weekly payments”. Section 147 is not a provision that stops weekly payments. It may, depending on the circumstances, have no effect or it could operate to limit the amount payable. Its purpose is not to provide a means of bringing compensation payments to an end.
- The Deputy President arrived at the correct conclusion as to the effect of s 147 and the orders he made were consistent with that correct interpretation.
- The appeal is dismissed.
(2017) 262 CLR 362.
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305 per Gibbs CJ; Mills v Meeking (1990) 169 CLR 214 at 223 per Mason CJ and Toohey J.
(2014) 88 NSWLR 488.
Per Leeming JA, Basten and Barrett JJA agreeing.
(2007) 231 CLR 531.
- Published Case Name:
JBS Australia Pty Ltd v Workers' Compensation Regulator
- Shortened Case Name:
JBS Australia Pty Ltd v Workers' Compensation Regulator
 ICQ 10
Member Martin J
18 Jun 2020