Kancheff v Chief Executive, Attorney General's Department & Anor [No 2] [2025] SAET 46

1. The answer to that question given by the Full Bench in the primary decision is:

On the agreed facts, the increases in rates of remuneration that apply from 1 January 2022 and 1 January 2023 are required to be taken into account in reviewing the applicant's notional weekly earnings in May and/or June 2023 under cls S1.84 and S1.85 of the Firefighting Industry Employees (South Australian Metropolitan Fire Service) Award 2007.

1. The application seeks to delete the words "1 January 2022 and" from that answer and to amend paragraphs [4] and [17] of the primary decision.

1. After the applicant ceased to receive weekly payments of income support under the Return to Work Act 2014 (RTW Act), he commenced receiving weekly income compensation under the Firefighting Industry Employees (South Australian Metropolitan Fire Service) Award 2007 (Award). The applicant is a firefighter and was entitled to receive weekly payments under the Award as he is an eligible employee with an eligible injury within the meaning of Schedule 1 of the Award. Firefighters, police officers and ambulance officers are some of the State Government department and agency employees who may seek and receive additional compensation under the awards that apply to their employment.[2]
2. The primary decision describes the different types of review of weekly payments available under each of the RTW Act and the Award.[3] The review in issue in this proceeding concerns adjusting of the rate of notional weekly earnings (NWE), which is defined in the RTW Act as:

notional weekly earnings in relation to a worker means -

(a) the worker's average weekly earnings; or

(b) where an adjustment has been made under this Act to take account of changes in levels of earnings, the value of money or remuneration (including under section 45, 46 or 60) or other relevant factors (or 1 or more of these) - the worker's average weekly earnings as so adjusted but not so as to exceed in any case twice State average weekly earnings;

1. The Award uses the definitions of average weekly earnings (AWE) and NWE contained in the RTW Act:

S1.7 Average Weekly Earnings means Average Weekly Earnings under S4(1) of the RTW Act;

S1.19 Notional Weekly Earnings means the eligible employee's Notional Weekly Earnings under the relevant compensation Act as adjusted pursuant to Part 9 of this Schedule.

average weekly earnings, in relation to a worker, means the worker's average weekly earnings determined in accordance with section 5...

1. Section 5(1) of the RTW Act provides that AWE is the average weekly amount earned by a worker in the 12 months prior to a work injury.
2. The primary decision concerned the ambit of a review of NWE under the Award. The RTW Act does not provide for the applicant's NWE to be reviewed and increased while the Award does. The applicant contended that cl S1.85 of the Award permits increases in rates of remuneration that took place whilst weekly payments were made under the RTW Act, to be included in a review under S1.85 of the Award which provides:

S1.85 Subject to S1.87, the Notional Weekly Earnings of an eligible employee who is entitled to income compensation shall be adjusted to reflect any increases in the rates of remuneration applicable to the classification held by the employee (or, where relevant, any successor classification) immediately prior to the particular injury occurring and prescribed by an award or enterprise agreement.

1. The Full Bench rejected the applicant's construction of cl S1.85. The reason for doing so is conveniently summarised in the decision headnote:[4]

... The definitions adopted by the [A]ward, the context in which the [A]ward provisions operate and the derivative nature of the additional compensation scheme strongly suggest that economic adjustments made under the [A]ward should not have regard to a time when the applicant received benefits under the RTW Act...

1. The applicant became incapacitated for work in 2020. He received weekly payments under the RTW Act for two years before receiving income support under the Award. The Statement of Agreed Facts tendered at the substantive hearing states that in conducting a review under the Award in 2023 (the 2023 review), the respondent did not increase NWE based on increases in rates of remuneration that occurred in 2021 (the 2021 increases), but did adjust and increase NWE based increases in rates of remuneration that occurred in 2022 (the 2022 increases). Incorporating the 2022 increases into the 2023 review is not consistent with the respondent's position, and the Full Bench's view, that increases in rates of remuneration that occurred whilst the applicant received weekly payments under the RTW Act cannot be taken into account. When the application was argued, the respondent stated that it had included the 2022 increases by mistake. The inclusion is not described like that in the Statement of Agreed Facts, the relevant part of which states:[5]

In around July 2023 the Respondent adjusted the Applicant's NWE to $2,843.73 effective from 23 January 2023. The adjustment was calculated on the basis that it did not include the 2.5% increase to wages from 1 January 2021, but did include the increases of 2.5% per annum from 1 January 2022 and 3% per annum from 1 January 2023.

1. Footnotes in the outlines of argument of the parties refer to the inclusion of the 2022 increases in the 2023 review, but also do not describe it as a mistake. The respondent's footnote states:[6]

It is noted that the Respondent in fact additionally calculated the adjustment to reflect the 2.5% wage and salary increase from 1 January 2022. Whilst this exceeds the Applicant's entitlement on the Respondent's case before the Full Bench, the applicant expressly does not seek to rely upon this fact as a concession by the Respondent as to the Applicant's legal entitlement...

1. The applicant's footnote in relation to the 2022 increases states:[7]

The applicant accepts that the fact that the respondent included the January 2022 increase in its adjustment, does not constitute a concession by the respondent that it was lawfully obliged to include that increase.

1. At the substantive hearing, counsel for the applicant referred to the agreement between the parties about the inclusion of the 2022 increases:[8]

Now, I think - we don't make a point about the inclusion of the second of the increments, notwithstanding that it's within the 104-week period. We don't say that somehow the respondent's bound not to argue that which it argues, which is it should not have made that increase.

1. While the answer to the question of law proposed by the respondent excluded the 2022 increases, the parties did not specifically address whether the answer should take into account the 2022 increases except in the footnotes. Each party agreed that the respondent was not precluded from arguing that the 2022 increases should not be included, but neither party expressly advised how the inclusion should be treated in answering the question of law given that it was agreed by them there would be no recovery of any overpayment to the applicant. I took the inclusion into account in answering the question of law notwithstanding concluding that, as a matter of law, the 2021 increases and the 2022 increases should not be included in reviewing NWE under cl S1.85.
2. The parties maintain the acknowledgements in the footnotes above but now disagree about whether the 2022 increases should be included in future reviews of NWE. The respondent submits that the 2022 increases should not be included in any review of NWE beyond the 2023 review.

1. Mr Garnaut, counsel for the respondent, submitted that his client should not be liable to continue making payments based on the mistake made in the 2022 review, that its concession was in relation to the rate of NWE payable for the year following the 2022 review and that the reasons of the Full Bench in the primary decision support the respondent's position.
2. Mr Garnaut referred to paragraph [20] of the Statement of Agreed Facts which states that on 24 May 2023 the respondent's solicitors wrote to the applicant's solicitors advising that NWE should increase by 2.5% from 6 July 2022 to 31 December 2022 and by 3% from 1 January 2023. Mr Garnaut submitted that the 2.5% increase for 2022 was a mistake as a matter of law and that on the legal argument presented to the Full Bench, there was no obligation on the respondent to pay the increase. Mr Garnaut submitted that the answer provided by the Full Bench is not consistent with the way in which the Full Bench interpreted the relevant provisions.
3. The applicant does not disagree with the respondent's interpretation of the effect of the primary decision. Mr Blewett, counsel for the applicant and now also counsel for the United Firefighters Union of South Australia Inc (UFU), said this at the hearing of the application:[9]

... We accept that the logic of the court's reasoning would result in the answer to the question as set out by the applicant. It seems to me, your Honour Judge Calligeros at paragraph 42 sets out the effect of the respondent's submission that, "Economic adjustments under the award only reflect changes in relevant rates of remuneration that occur after weekly payments cease to be payable under the Return to Work Act." It appears that the balance of your Honour's decision agrees with that expression of the construction of the section, and so given that neither the January 2022 nor January 2021 increases occurred in a time after payments had ceased to be payable, the respondent's answer would follow.

1. Mr Blewett then said that while the applicant accepts the respondent's interpretation of the primary decision, the decision records that the only increase in issue between the parties was the January 2021 increase. Mr Blewett submitted that as the claim before the Court is a monetary claim under the Fair Work Act 2009 (FW Act), there is no jurisdiction to determine any overpayment issue. Mr Blewett then said that it would not be appropriate for the court to, in effect, answer the question referred "in a manner that decides a question not in issue, that is, the status of the January 2022 increase".[10] Mr Blewett said that the parties had tried to reach agreement on the issue but had been unable to do so.
2. Mr Blewett submitted that s 81 of the South Australian Employment Tribunal Act 2014 (SAET Act), which the respondent relies on, is not enlivened here as there is no clerical mistake and no correction of an error arising from an accidental slip or omission. He submitted that the way in which the question was answered was the consequence of the way in which the parties ran the case.
3. Mr Blewett submitted that it was not appropriate to answer the question as the respondent seeks, or to correct paragraph [4] of the decision.

1. In the primary decision, Kelly and Rossi DPJJ agreed with my reasons and with the answer to the question of law I proposed. Rossi DPJ added some further reasons of his own.
2. The question of law asked which of three increases in the rates of remuneration applicable to the applicant was the respondent required to take account of in conducting the 2023 review. The answer was that the 2022 and 2023 increases were required to be taken into account. The 2022 increases were included in the answer because the respondent had included the 2022 increases in the 2023 review and no recovery of them was sought. I did not want the answer to conflict with the agreement between the parties and framed it accordingly. That is why the 2021 increases is referred to as "the only increase in issue".[11]
3. My understanding is consistent with a submission made by Mr Blewett at the substantive hearing when he was asked about the practical effect of what was sought by the applicant:[12]

He doesn't have an entitlement to payments under this schedule until 6 July 2022, and so the effect of his argument, if it's accepted, is that as of 6 July 2022, he is entitled to receive payments at 80 per cent of his notional weekly earnings level, as adjusted for including the 1 January 2021 increase...

1. That response suggests that it was only the 2021 increases that were in issue. The respondent did not challenge the assertion.
2. Because the matter proceeded by way of the referral of a question of law with agreed facts, this Court did not hear any submissions about the overpayment made to the applicant. While the parties have agreed that there will be no recovery of the 2022 increases in the 2023 review, they appear not to have considered the issue in subsequent reviews.
3. The parties agree that regardless of the form of the answer given to the question of law, the Court held that any increases in rates of remuneration that occurred whilst weekly payments were made to the applicant under the RTW Act are not taken into account when reviewing NWE under cl S1.85 of the Award.
4. Section 81 of the SAET Act provides:

(1) The Tribunal may correct a decision it gives or a statement of the reasons it has given for its decision to the extent necessary to rectify -

(a) a clerical mistake; or

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the decision; or

(d) a defect of form.

(2) The correction may be made -

(a) on a party's application made in accordance with the rules; or

(b) on the Tribunal's own initiative.

1. Taking the 2022 increases into account in answering the question of law is not a clerical mistake. As explained, the inclusion was deliberate. The element of deliberateness also excludes being able to treat the inclusion of the 2022 increases in the answer to the question of law as an error arising from an accidental slip or omission under s 81(1)(b). Sections 81(1)(c) and (d) do not have application to these circumstances.
2. In my view the appropriate course is to refuse the application, other than in relation to paragraph [17] of the primary decision, which contains a clerical or typographical error. The second sentence omits the word "not" and should read: "A s 38 review does not extend to making an alteration of the rate of AWE or NWE." The applicant does not oppose that correction.
3. The practical effect of the mistaken inclusion of the 2022 increases in the 2023 review, and whether it can be rectified, is beyond the ambit of this proceeding. The answer to the question of law in the primary decision has been appealed to the Court of Appeal by the applicant in any event. That appeal may enable the Court of Appeal to vary the answer given if the Court considers that course appropriate.
4. I would make the following orders:
   1. The orders sought by paragraphs [1] and [2] of the application are refused.
   2. Paragraph 17 of the primary decision is amended to read:

A review under s 38 of the WRC Act concerns capacity for work and "the amount of the weekly payments made to a worker". A s 38 review does not extend to making an alteration to the rate of AWE or NWE. Weekly payments are reduced or increased if there was an increase or decrease in a worker's capacity for work. The same is true of ss 35A, 35B and 35C of the WRC Act. Those provisions are referred to as work capacity review provisions and applied from 2008 in cases where the period of incapacity for work exceeded 130 weeks.[13] In such a case, if a worker had a retained capacity for work and was not maximising earnings from employment, weekly payments could be discontinued. Clauses S1.49 to S1.57 of the Award are headed "Work Capacity Reviews" and import the operation of ss 35A to 35C of the WRC into Schedule 1.

1. Having read the transcript of the argument before the other members of this Full Bench on 14 April 2025 and having had the benefit of reading the judgment of DPJ Calligeros I agree with his proposed orders and reasons for decision.

1. I agree with the orders proposed by Calligeros DPJ for the reasons he gives.

[1] Kancheff v Chief Executive, Attorney General's Department & Anor [2025] SAET 10.

[2] In this case, under cl S1.43 of the Award.

[3] As described in [27] of the primary decision.

[4] [2025] SAET 10, 1.

[5] Statement of Agreed Facts, 6 August 2024 [22].

[6] Respondent's Outline of Argument, 23 October 2024, [3] footnote 1.

[7] Applicant's Outline of Argument, 25 September 2024, [6.12] footnote 1.

[13] Inserted by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA).