Loades v Workcover/Mercantile Mutual

4 The employer is a contractor, which provides amongst other things, labouring services to vineyard proprietors. It does so by setting up teams of workers to undertake work such as grapevine pruning and grape picking.

5 The employer was approached by the Salvation Army, which was participating in a Commonwealth Government job placement initiative that endeavoured to provide employment opportunities for the long-term unemployed. The worker was one of a group of about 12 persons taken on by the employer in mid June 1998, in accordance with this initiative. It was expected that there might be up to six months work for the group, but as things transpired, all but three of the group was laid off on or prior to 27 July 1998 and the remaining three only stayed employed until 9 September 1998.

6 The worker was paid at the rate of $10.00 per hour for the work that he performed. It would seem that sore hands and wrists are an occupational hazard associated with continuous pruning of grapevines so it was not entirely surprising that the worker developed hand and wrist soreness shortly after commencing work. As it was, by 18 July 1998, the worker was sufficiently troubled by this pain that he thought it necessary to consult with a doctor, and by 27 July 1998, he was unable to work. During the weeks prior to him ceasing work, the worker had earned the sums of $240.00, $370.00, $400.00 and $400.00, respectively.

7 The wage records of the three employees who remained employed until 9 September 1998 reveal a range of weekly rates from $168.30 to $559.65, with most weeks being around $400.00 per week.

8 In calculating the worker's entitlements to income maintenance, the Corporation based its assessment of the worker's notional weekly earnings on these figures. It averaged the aggregate amounts and divided that amount by 52, and thereby assessed the worker's entitlement at $74.35 per week. The worker challenges the correctness of this approach.

10 Most of the debate before me focussed upon what lay ahead for the worker in terms of his future employment prospects.

11 The Corporation endeavoured to paint a picture of a man who was a long term recipient of unemployment benefits; who had only rejoined the labour market because of the threat of sanctions by the Department of Social Security; who only obtained employment through the assistance of the Salvation Army; and who was destined to rejoin the ranks of the unemployed upon completion of the employer's contract, if not before.

12 The worker suggested otherwise, contending that had the disability not occurred he would have found other work, such as picking almonds. That notwithstanding his poor prior work record, his personal circumstances had changed for the better such that he was more able to participate in the labour market and secure steady full time work employment.

13 In fact, none of this is particularly relevant to the enquiry that I must undertake.

14 My task is not to assess the worker's future loss of earning capacity. If it was the sorts of submissions to which I have just referred would be highly relevant. My task is to assess notional weekly earnings in accordance with a statutory formula that does not permit me to take into account the fact that a worker's employment was about to end, other than possibly in connection with the inclusion or exclusion of overtime payments, which is of no relevance here.

15 The fallacy of the Corporation's approach can be illustrated thus. If the worker had been incapacitated for work for one day, one would pay him income maintenance at the rate of one fifth of what he was being paid per week. Given that his weekly earning for the four weeks prior were between $240.00 and $400.00, no one would seriously suggest that that amount to be awarded for the day's incapacity should be $15.00. If he was incapacitated for one week, I doubt that anyone would seriously suggest that he should only receive $75.00. The fact that the worker has been incapacitated for a lot longer than one week does not affect the calculation of his notional weekly earnings

16 What are the worker's notional weekly earnings?

17 They are not $74.35 per week. He never earned that amount as a weekly rate nor did any of those upon which the Corporation seeks to rely.

18 The assessment in this case has only been made difficult because the worker was employed as a casual, his hours of work fluctuated, and the period of his employment was so short that a settled pattern of working hours does not emerge. Whether the worker's employment would have continued for three weeks or three months in neither here nor there.

19 In cases where "by reason of the shortness of time during which the worker has been in employment, the terms of the worker's employment or for any other reason, it is not possible to arrive at a fair average the worker's average weekly earnings may be determined by reference to the average weekly amount being earned by other persons in the same employment who perform similar work at the same grade as the worker" s 4(2)(b)(ii) Workers Rehabilitation and Compensation Act 1986 ("the Act").

20 I think it is appropriate to give consideration to the average weekly earnings of the three casuals who worked for the extended period for the employer, not because they reflect the worker's future employment prospects, which is the way the Corporation seems to have relied upon them, but because their average earnings provides a sounder basis upon which to assess the worker's average weekly earnings. If one averages out the amounts earned by these employees and reduce that to an actual weekly rate (as opposed to one artificially arrived at by treating the amount earned over an 11 week period as if it were earned over a 52 week period) it produces a figure of $351.48 per week. I think that this figure should form the basis of the assessment.

21 It suggested in the course of argument that the Wine and Spirit Industry (SA) Award ought to provide the basis upon which the calculation should be made.

22 If the worker should have been paid in accordance with the Award and that amount is higher than that which he was being paid, it is clear that the assessment of income maintenance should be based upon the Award rate: s 4(7)(a).

23 However, having carefully considered the Award, I am satisfied that it did not apply. Although the scope and persons bound clause in the Award is broad, I do not think that the expressions "persons employed in or in connection with vineyards"; and "in the manufacture" "of wine"; are sufficiently broad in their terms to include labourers employed by labour providers undertaking pruning work on grape vines, for others. Whilst there clearly is a nexus with the wine industry and with vineyards, it is not, in my view, sufficiently strong to attract the operation of the Award.

24 Taking a broad axe approach, I assess the worker's entitlements to income maintenance at the rate of $350.00 per week. I would now like to hear from counsel as to the precise form of the order they now seek as a result of this ruling.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.