2 The defendant company terminated her employment as from 7th November 1974, and in July 1975 stopped payments of workers compensation, possibly because there was a common law action then pending. The plaintiff was unsuccessful in that action. On the 9th February 1978, in accordance with the terms of a Release executed by the parties, she was paid out her full entitlement under the Workers Compensation Act including B x 284. However, in that Release the parties expressly reserved the question of whether by virtue of s8C of the Act she was entitled to payments in respect of annual recreational leave. The Award provided that she was entitled to a period of 21 consecutive days leave annually after twelve months continuous service.

3 The defendant company at no time prior to 9th February 1978 paid the plaintiff her full entitlement in respect of weekly payments. Had it done so her right to weekly payments - that is B x 284 - would have been exhausted by the 3rd June 1975. The plaintiff's claim is that she is entitled to that amount of leave on full pay which she would have enjoyed had she worked from the 20th May 1970 to the 9th February 1978. The rate of pay, she claims, ought to be calculated from the Award provisions prevailing now, or alternatively those prevailing in 1978. By way of a further alternative, the plaintiff claims to be entitled to so much annual leave as would have accrued in the period from the 20th May 1970 to the 3rd June 1975, or pay in lieu thereof to be calculated according to the Award operating now, or that operating in 1975. The defendant says that she is not entitled to anything in excess of B x 284 (which she has already received) and in any event would not be entitled to anything by way of annual recreational leave because she had been fully paid for 52 weeks of each year during the relevant period.

4 The issues are to be resolved by an analysis of s8C of the Act and Rule 3(d) of the Schedule to the Act. The Section is as follows:

"8C - (1) If during a period for which compensation would otherwise be payable to a worker under this Act there occurs any period during which the worker would be entitled under the contract of service in force when the right to compensation accrued to be absent from his employment on full pay, the worker shall -

(a) in the case of a period not in the nature of annual recreational leave, be paid by his employer the amount by which the compensation payable under this Act in respect of the period falls short of his full pay, except in a case where the worker and his employer agree that the worker shall be absent on full pay for a period in lieu of the other period ; and

(b) in the case of a period in the nature of annual recreational leave, be given by his employer a similar period of leave on full pay in lieu at some time within three months of his return to work, or at the termination of his right to compensation under this Act if he does not then return to work.

(2) This section does not apply in respect of any period of long service leave."

5 The Rule has, like most of the Statute, been the subject of continuing ill-considered amendment. I may be shouting to the wind, but I venture to repeat again my plea for a proper consideration of the Workers Compensation Act with a view to rationalisation of the Statute and the Schedule. In doing so, I make no plea for any political solution but simply for an examination of the Statute and Schedule by professionals with a view to making it comprehensible and consistent.

6 The Rule in terms deals with the calculation of the amount of the weekly payment entitlement. It has never in terms had anything to say about annual leave payments. When Section 8C was enacted in 1955, the Rule provided that the compensation payable where total or partial incapacity for work had occurred "shall be a weekly payment during the incapacity of an amount calculated in accordance with the Rules hereinafter contained provided that:

In fixing the amount of the weekly payment regard should be had to any payment, allowance or benefit which the worker may receive from the employer during the period of his incapacity ... "

An identical provision in the New South Wales Statute (Section 13) was considered by the High Court in Thompson v Armstrong and Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585. Their Honours, McTiernan, Fullagar and Kitto JJ (Latham CJ, and Webb J dissenting and Williams J expressing no opinion) held that the only payments, allowances or benefits which the Court ought to have regard to under that section (and accordingly under the Tasmanian Rule as it then stood) were payments, allowances of benefits made not only during the period of incapacity but also in respect of the incapacity. It is noteworthy that Sir Garfield Barwick, who argued the case for the employer in the High Court, expressly declined to rely upon s13. It may therefore be taken that his view was consonant with the view of the majority. In the result, the High Court was equally divided upon the issues raised in the case with the consequence that the decision of the New South Wales Court of Appeal in favour of the employer stood. The case is in no way decisive of the question here to be determined, but it is part of the legislative and litigious history into which the enactment of s8C and the subsequent amendment of the Rule must be fitted. It may indicate a legislative wish to remove uncertainty by giving the worker a statutory right to leave payments in addition to weekly payments. When s8C was enacted, the words "subject to s8C" were inserted into the Rule as it then stood. It is not easy to construe these words in the context of the Rule but it would appear that the object of the amendment was to ensure that any payment to which the worker became entitled under s8C would not be a payment to which the Court would have regard in fixing the amount of the weekly payment.

7 It is necessary now to turn to the section itself and endeavour to construe it, and I can begin by saying that in my opinion subsection (2) is irrelevant. All that it means is that long service leave is to be dealt with in another Statute. The first part of the section to be construed are the words "If during a period for which compensation would otherwise be payable to a worker under this Act". The word "otherwise" creates some difficulty, but I have come to the conclusion that all that it means is that the attention of the reader is directed to a period in which, because of other provisions of the Statute, compensation is payable. That is to say that before the section can have any operation, there must be a right to compensation found elsewhere in the Statute, and it is the period during which that compensation is payable which is relevant. The next question is whether that period is the period during which the compensation would be paid if properly calculated or whether it is the period which elapses before the worker is in fact paid the full entitlement. The choice between those two constructions must be deferred until the section as a whole is analysed. I propose to do that in the context of the facts of this case.

8 At the time of her injury the plaintiff was employed by the defendant and the relevant contract of service was the Award. The time of her injury was the time when the right to compensation accrued. Paragraph (a) of s8C is not immediately relevant because no claim is made in respect of periods not in the nature of annual recreational leave, but it is significant in that it shows that the employee is entitled to be paid something in excess of the weekly payment due under the Act. That is to say - if his entitlement under the Act was x dollars per week and a statutory holiday period occurred, he would be entitled to the difference between the Award payment for that period y and workers compensation ie y - x. The significance of this is that it would be giving with one hand and taking with the other if this extra payment were to be included in the calculation of B x 284. Such a construction ought to be avoided. I therefore conclude that the entitlement under paragraph (a) is quite separate from that due under Rule 3, and is additional to B x 284. When one turns to paragraph (b) one could and ought reasonably expect that the intention of Parliament was consistent, and that what was to be given by paragraph (b) was also something in addition to B x 284. Now what paragraph (b) gives is a period of leave on full pay in the nature of annual recreational leave "in lieu". The expression quoted is truncated but I take it to mean "in lieu of the leave he would have been given had he been at work". This is an entitlement separate from and additional to the right to weekly payments. If that is so, then Parliament intended the worker to be given on his return to work all the leave that would have accrued to him had he been at work during the period of his incapacity. But the paragraph goes on to say that he is entitled to that leave at the termination of his right to compensation if he does not then return to work. I conclude therefore that this lady was entitled at the termination of her right to compensation, to leave on full pay for a period equivalent to the leave she would have received had she been at work during the relevant period; and I also conclude that this entitlement is not to be taken into account in the calculation of B x 284.

9 I return now to the question which I set aside before - what is the period "for which compensation would otherwise be payable". It seems to me that consistency requires that period to be the same period which ends on the "termination of her right to compensation".

10 The plaintiff was still entitled to receive compensation from the employer up until the 9th February 1978 and indeed if my construction of s8C is correct, is still entitled to receive compensation from the employer even though the compensation is in the form of a period of leave. However, entitlement to that date (and beyond) arises only because of the delay of the employer; and in my view it was not an entitlement of that nature to which Parliament was directing its attention. Parliament was, in my view, directing its mind to the period of incapacity during which the right to compensation accrued weekly. So to read the section is in my view consistent whilst to read it as if the worker were entitled up until February 1978 would mean that there would be a built-in penalty on employers who did not pay on time. There would be nothing unjust in the imposition of such a penalty but I do not believe that considerations of that nature were part of the intention of Parliament. I hold therefore that the plaintiff is entitled to leave on full pay for that number of days which would have accrued to her had she been actively employed by the defendant from the 20th May 1970 to the 3rd June 1975. I am not at all troubled by the fact that because she cannot work she cannot get leave. She is entitled, the section provides, to leave on full pay in lieu. As I have said that expression is less than explicit but the meaning is discoverable. It must be taken to provide for a money payment for those who do not return to work. The rate of pay to be applied is that which was current in the period immediately subsequent to the 3rd June 1975.

11 I will leave it to counsel to calculate the amount due to the plaintiff and to that end grant liberty to apply.