Doyle v Sydney Steel Co Ltd [1936] HCA 66;

Doyle v Sydney Steel Co Ltd [1936] HCA 66; - HCA 1936 case summary — Zoe

[5]

The appellant is a boiler-maker, who was injured about March 1935, in the course of his employment. This employment was temporary in its nature, and was obtained at irregular intervals and with successive employers between 9th May 1934 and 14th March 1935. The appellant was paid on an hourly basis, and he earned £73 14s. 3d. in fifteen weeks and one day's work during this period. He claimed compensation under the Workers' Compensation Act 1926-1929 of New South Wales, and the question was how his average weekly earnings should be computed under the Act. The Act provides that the average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated. The appellant contended that his average weekly earnings should be computed at £4 17s. per week, based, as I understand, on the average weekly earnings of a worker in the same grade employed in the same class of work and in the same district (sec. 14 (a), proviso). But the Workers' Compensation Commission was not satisfied that the average weekly earnings of the appellant were best calculated in the manner allowed by the proviso to sec. 14 (a). The appellant was not, apparently, in a comparable position to that of a worker in the same grade &c. No reason has been assigned which leads me to think that the commission was wrong in its conclusion. The commission found that the appellant was a "casual worker," and it applied the provisions of sec. 14 (e) of the Act to his case, and computed his average earnings on the weekly living wage declared in the State of New South Wales, namely, £3 7s. 6d.. The description "casual worker" is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact for the commission. The finding of the commission, in the circumstances of the present case, cannot be disturbed. The commission regarded sec. 14 (e) as furnishing the method best calculated to give the rate per week at which the worker was being remunerated. The steps by which it arrived at the living wage, £3 7s. 6d. per week, are not set out, but there is nothing in the case stated to suggest any error on its part.

[7]

The average weekly earnings upon which worker's compensation for total or partial incapacity is computed are those of the previous twelve months if the worker has been so long employed by the employer but if not, then for any less period during which he has been in the employment of the same employer (sec. 9 (1) (a) of the Workers' Compensation Act 1926-1929 N.S.W.). The purpose is to obtain the rate of remuneration which at the time of the injury the worker received in that employment. "Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated" (sec. 14 (a)). To this end it is necessary to take the period, not exceeding twelve months, during which a nexus continued between the worker and the same employer. Such a nexus is consistent with intervals of idleness through lack of work, or the worker's own absence (Price v. Guest, Keen and Nettlefolds[1]; cp. Scott v. Summerlee Iron Co.[2]). But a change of grade marks a new beginning and perhaps an interruption for some unavoidable cause does so (sec. 14 (c)). For the object is to find the average remuneration obtained by the worker at the time when he suffered the injury and so incurred the incapacity to go on earning it. Accordingly, the weekly average is calculated by dividing the total remuneration received by the worker during the period, not by the number of weeks contained in the period, but by the number of weeks in which the worker was at work. If some of the intervals during which he was not at work and earned nothing are attributable to the ordinary incidents of his employment, the result produced by the calculation will not, it is held, reflect his true average rate of earning. To correct it the product so far obtained must be diminished by an amount bearing the same proportion to the whole as these intervals bear to the total period (Perry v. Wright[3]; Anslow v. Cannock Chase Colliery Co. Ltd.[4]). But it might be found impracticable to compute the remuneration at the date of the injury from the period of the worker's employment by the same employer. This might arise from the shortness of the period, or from the casual nature of the employment, or from the terms of the employment. Thus in the case of workers like stevedore's labourers who are picked up for each ship, it would be impossible to apply the standard. If the impracticability arises from any of the three causes stated, the English Act remits the ascertainment of the average weekly earnings to another test or tests. It provides that regard may be had to the average weekly amount which during the twelve months previous to the injury was being earned by a person in the same grade employed at the same work by the same employer. Again it must be the same employer. But if there is no person so employed, then the average weekly amount earned by a person in the same grade employed in the same class of work must be taken. In New South Wales this provision was at first transcribed without change, but now one of the three grounds has been dropped. The casual nature of the employment is no longer a reason on which the impracticability may be based (sec. 14 (a), proviso). It was omitted as part of what was evidently an attempt to overcome the effect of the decision of the Court of Appeal in Cue v. Port of London Authority[5]. The legislative directions for ascertaining the average weekly earnings include the following provision: - "Where the worker has entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer, and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the injury" (sec. 14 (b)).

[18]

It still remained for the Commission to consider whether the proviso to par. a should be applied. But the case stated contains a finding that it was not "impracticable" to compute the rate of remuneration. This I understand to mean that the Commission considered that on the evidence the successive periods of employment and unemployment encountered by the appellant provided a reasonably correct measure of the earnings obtainable from his trade. It does not appear precisely what step the Commission next took. Perhaps, as was suggested in the Full Court, the total earnings of the appellant were divided by the number of weeks of the period. If so, I do not think that we are in a position to say that on the evidence such a course was wrong in law. The evidence shows that, for men like the appellant, a very high percentage of unemployment was incident to the trade of a boiler-maker. When the intervals during which a worker is unable to earn remuneration at his trade are all attributable to the nature of the occupation and are ordinary incidents of its pursuit, the total earnings may be divided by the number of weeks in the entire period. For this is the same thing as reducing the average earned during the weeks worked by a proportion bearing the same relation to the whole as all the weeks of idleness do to the weeks contained in the total period. The stated case is, perhaps, open to the objection that at this point it practises too great an economy in setting out precisely how the Commission proceeded with the calculation. But, at the hearing of the appeal, no point was made of this, and in relation to it there is a practical consideration which cannot be disregarded. It arises on the facts disclosed by the evidence read with the conclusions of the Commission. Whatever view we might ourselves take of the question, there can be little doubt that the Commission regarded the pursuit followed by the appellant as especially exposed to periods of unemployment. In such a view of the facts, which is open on the evidence, it does not seem to me to be probable if possible, that a rate of average weekly earnings could be adopted higher than the minimum prescribed by par. e. That minimum is the basis of the commission's order.

[37]

In my opinion, sec. 14 (e) could not lawfully be applied, having regard to the facts found by the commission and the other undisputed facts of the case. Doyle was not a "casual worker" at all (Cf., per Atkin L.J., Twidale's Case[13]). The only evidence was that he was a trained boilermaker who never engaged himself in any other calling or vocation. Nor did the commission find that he was a "casual worker," merely finding that his employment with the particular employer was "casual" in the sense that he could be dismissed at an hour's notice in pursuance of the court's award. But the object of sec. 14 (e) is to deal with the case of a true "casual worker," who is engaged in different trades, callings or occupations. It provides that, in such a case, the worker shall aggregate his previous earnings in the same trade over a period not exceeding twelve months, during which he has been engaged in such trade. In the result, if a casual worker works in turn (say) as gardener, cleaner and messenger, and is injured while working as a gardener, the computation of his "average weekly earnings" under sec. 14 (e) shall be made by reference to all his engagements as gardener for a period of twelve months preceding the injury, or any less period during which he worked as a gardener. The result is to give a weighted and more accurate average of earnings as gardener, because, being, ex hypothesi, a "casual worker," the worker may be employed only for several hours during each engagement. The general nature of the provision is, for computation purposes only, to associate the "casual worker," who belongs to no one trade or industry, with the trade or industry in which he was engaged when injured. Moreover, sec. 14 (e) does not say that, in making the calculation, the "casual worker" is to be debited with periods of unemployment, or that, where his earnings are to be aggregated over twelve months they are to be divided by fifty-two, so as to get average weekly earnings. But that is what the Workers' Compensation Commission has done in the present instance, and, in my opinion, the course pursued is entirely wrong. As pointed out above, the result of the process is the amazing finding that, at the time of the injury, the "average weekly earnings" of a skilled boiler-maker like the applicant, who was being paid the standard or minimum wage, was less than thirty shillings per week! In my opinion, he was not a "casual worker" at all; but, even if he was, the proper method of calculation under sec. 14 (e) would be to divide the £73 14s. 3d. earned during the twelve months prior to the accident, not by fifty-two, but by 15%p1/5%p, being the number of weeks during which the appellant was making earnings in the same "industry." A man's average earnings per week means the money received on an average during each week worked, and not during a week in which there can be no earning. On the contrary view, a cricketer's average runs per innings would be computed by dividing his total runs, not by the number of innings he completed, but by the innings he might have had if he had played in additional matches.

[48]

The appellant was employed as a riveter in the respondent's business. His employment was governed by an award of the Commonwealth Court of Conciliation and Arbitration. Riveting is defined by the award to be within the scope of the work of a tradesman boiler-maker. The award provides for an hourly and a weekly rate. The appellant was engaged at an hourly rate but he was engaged for an indefinite time. In fact, he worked for five weeks and four days. Engagement at an hourly rate is not a criterion of casual employment as distinct from regular employment. The award deals with overtime, Sunday work and holidays and provides for the payment of wages weekly or fortnightly. Many artisans in regular employment are engaged at an hourly rate. The standard working week fixed by the award is forty-four hours and the appellant worked for that period in every week without any interruptions. The respondent regularly employed boiler-makers for the purposes of its trade, and, although the occasion for the appellant's employment was to cope with an increase of work which may or may not have been maintained, the appellant was engaged for an indefinite time on terms applicable to all such artisans in the respondent's employment. Where a skilled tradesman obtains employment at his trade with an employer who regularly carries a staff of artisans belonging to that trade and is employed on terms applicable to all such employees, I find it difficult to say that he is a casual worker, although the occasion of his employment may be the receipt of more orders by the employer. I find nothing in the evidence in the present case which detracts in any way from the prima facie conclusion that the appellant, the nature of whose employment is exactly described by these observations, was not a casual worker. The fact that in the course of the year he had been engaged by other employers in the industry as a boiler-maker and that there were intervals between such periods of employment does not affect this conclusion. There was nothing in the evidence which would, in my opinion, justify the application of the term "casual" to the relations existing between the appellant and the respondent (Cf., per Atkin L.J., Williams v. Haigh[25]).

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Doyle v Sydney Steel Co Ltd [1936] HCA 66; (1936) 56 CLR 545 (15 December 1936)

Parties

Legislation Cited (1)

Cases Cited (1)