Palumpa Station Pty Ltd v Fox [1999] NTSC 144; 132 NTR 1; 154 FLR 282

,,ordinary time rate of pay in subsection (1), a workers

remuneration includes an over-award payment, climate allowance,

district allowance, leading hand allowance, qualification allowance,

shift allowance (where shift work is worked in accordance with a

regular and established pattern) and service grant, but does not

In proceedings in the Work Health Court, Mr Trigg SM held that the value

of housing, meat, electricity and gas benefits provided by the appellant

employer were not to be excluded in calculating the respondent workers

normal weekly earnings as falling within the description "any other

allowance" for the purposes of section 49(2) of the Act.

The terms of the respondent workers appointment in sofaras remuneration

station (appellant employer) will pay the rent to the

Meat for your personal consumption and that of your

Electricity and Gas: These items will be met by the station."

The learned magistrate found that the housing, meat, electricity and gas

benefits formed part of the respondent workers remuneration for the

purposes of paragraph (d) of the definition of "normal weekly earnings"

provided by section 49(1) of the Act. No complaint is made by the appellant

employer about that finding. However, Mr Bryant on behalf of the appellant

employer submits that these benefits fe ll within the general exclusion

("... any other allowance") in section 49(2) of the Act and accordingly their

monetary value should not have been included in calculating "normal

The learned magistrate referred to the following passage of Latham CJ in

Mutual Acceptance Co Ltd v The Federal Commissioner of Taxation (1944)

[1944] HCA 34; 69 CLR 389 at 396-397:

",,Allowance in the relevant sense is defined in the Standard

Dictionary as meaning: - ,,That which is allowed; a portion or amount

granted for some purpose, as by military regulation, operation of law,

or judicial decree; also, a limited amount or portion, as of income or

food; as, an allowance of rations; an allowance for costs; an

allowance for tare or breakage; an extra allowance for services; to

put one on an allowance of bread. When the word is used in

connection with the relation of employer and employee it means in

my opinion a grant of something additional to ordinary wages for the

purpose of meeting some particular requirement connected with the

service rendered by the employee or as compensation for unusual

condition of that service. Expense allowances, travelling allowances,

and entertainment allowances are payments additional to ordinary

wages made for the purpose of meeting certain req uirements of a

service. Tropical allowances, overtime allowances, and extra pay by

way of ,,dirt money are allowances as compensation for unusual

The latter class of allowances represents higher wages paid on

account of special conditions, and may fairly be described as part of

wages in the ordinary sense. A victualling allowance has been held

to be part of the wages of a seaman (The Tergeste (1903) P.26).

Allowances which are wages in the ordinary sense are, however,

included in the word ,,wages itself where it appears in the definition.

If the word "allowances" were limited by construction to allowances

which fell within the ordinary concept of ,,wages, the result would

be that the word ,,allowances in the definition would have no

application, and would not operate to extend the ordinary meaning of

the word ,,wages. It would have no significance or effect.

Accordingly, in my opinion it is proper to reject the contention that

only such allowances as are remuneration for services are included

"Therefore, in my opinion, to be an allowance to be excluded under

s.49(2) it must be a payment or portion allowed which of itself does

not form a part of the workers remuneration in the ordinary sense.

The learned magistrate explained that "remuneration in the ordinary sense"

was "reward or payment of the service provided by the worker to the

employer". In His Worships opinion if a benefit provided by an employer

to a worker met this description then it fell outside the general exclusion in

section 49(2) of the Act which was directed at "allowances" in the sense of

recompense for extra expenses that the worker might need to incur in orde r

to perform his duties. In the present case, His Worship found that the

"... all properly characterised as extras provided to the worker to

take account of the special conditions of his employment

(particularly the remote locality) and to attract a person to the

position, and they may therefore by fairly described as part of his

remuneration in the ordinary sense. They were all reward or payment

Upon this basis, each of the items fell within the workers remuneration and

accordingly were not excluded by section 49(2) of the Act in calculating the

In Mr Bryants submission, the learned magistrate erred in interpreting the

general exclusion of allowances in section 49(2) of the Act as applying only

to rewards or payments by an employer which fell outside what could be

described properly as remuneration for services rendered by the worker. If

this were so, Mr Bryant submits, there would have been no necessity for the

Legislature to have referred expressly to "an over-award payment, climate

allowance, district allowance, leading hand allowance, qualification

allowance, shift allowance ... and service grant" as being included in a

workers remuneration for the purpose of calculating "normal weekly

earnings". Mr Bryant submits that each of such "allowances" are

"remuneration in the ordinary sense" i.e., reward or payment for services

rendered. Accordingly on the learned magistrates approach to section 49(2)

of the Act there would have been no necessity to make specific reference to

such allowances as forming part of a workers remuneration for the purpose

In Mr Bryants submission, section 49(2) of the Act is designed to promote

administrative efficiency in calculating a workers normal weekly earnings

by providing an exclusive list of those allowances which are to be included

in calculating normal weekly earnings. Mr Bryant submits that the present

case provides a clear example of the difficulties in calculating a workers

normal weekly earnings if all rewards in cash or kind for services rendered

are to be included in calculating normal weekly earnings. In each case

where a worker receives a non-monetary benefit as part of his ordinary

remuneration detailed calculations would need to be undertaken to establish

the value of such "allowances" (in this case, housing, meat, electricity and

In Mr Bryants submission, the respondent workers normal weekly earnings

should have been calculated by reference only to the salary component of

his remuneration and the additional benefits of housing, meat, electricity

and gas provisions excluded as not being within the allowances specified by

section 49(2) of the Act as ones to be included in calculating normal weekly

For the respondent worker, Mr Grant submits that the learned magistrates

interpretation of section 49(2) is consistent with the beneficial character of

the Act. Mr Grant stresses that the Act is properly classified as remedial or

beneficial legislation that should be interpreted liberally in favour of the

worker. Where there is ambiguity, the construction most favourable to be

worker is to be preferred: Foresight Pty Ltd v Maddick (1991) 79 NTR 17 at

24; Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335, Dodd

v Executive Air Services Pty Ltd [1975] VicRp 66; [1975] VR 668 at 679, 682.

In addition to the construction of section 49(2) favoured by the learned

magistrate, Mr Grant submits that section 49(2) creates a class by the use of

"... over-award payment, climate allowance, district allowance,

leading hand allowance, qualification allowance, shift allowance...

and service grant, but does not include any other allowance".

In Mr Grants submission, the genus of the class created by section 49(2) of

the Act is that of an allowance by way of monetary payment related to some

specific aspect of a workers duties or employment. Mr Grant submits the

housing, meat, electricity and gas benefits of the present case do not fall

within that genus and are, accordingly, not "allowances" in the material

sense. Further, acceptance of the appellants submissions as to the proper

approach to section 49(2) in the case of a worker remunerated substantially

by non-monetary benefits, would be contrary to the object of the Act which

was described by the Court of Appeal (Gallop ACJ, Kearney and Morling JJ)

in AAT King's Tours Pty Ltd v Hughes (1994) 4 NTLR 185 at 194 as

"The intention appears to be to provide to the worker during

disability amounts by way of compensation calculated by reference

to the normal weekly earnings which he could have counted upon

receiving if there had been no disability. To that extent it reflects an

In my view, the learned magistrate erred in law as to his approach in

interpreting section 49(2) of the Act but was correct to have included the

value of the housing, meat, electricity and gas benefits provided to the

respondent worker in calculating his normal weekly earnings.

I do not consider that the passage from the judgment of Latham CJ in

Mutual Acceptance Co Ltd v The Federal Commissioner of Taxation, supra,

relied upon by the learned magistrate can assist in interpreting section 49(2)

of the Act. That case was concerned with the construction of "wages"

within the meaning of s.3 of the Pay-roll Tax Assessment Act 1941 (Cmth).

"Wages" was defined to include, inter alia, allowances paid or payable in

cash or in kind and the provision by an employer of meals or sustenance or

the use of premises or quarters as consideration or part consideration for the

employees services. The statutory definition with which the High Court

was concerned with there is clearly far removed from section 49(2) of the

Act. With respect, I agree with the following observation of Dixon J

(dissenting) at p.402 of the Mutual Acceptance case:

"The question we must decide turns, in my opinion, upon the

meaning in... context of the word allowance. For I cannot think that

the ordinary meaning of the word ,,wages would cover the payments

,,Allowances is one of the many words which take their meaning

from a context rather than affecting or controlling th e meaning of

other words of the context in which they occur, for, considered alone

and at rest rather than at work with other words, it means that

allowing of a thing or a thing allowed. It is only by its application

Similarly, with respect, I agree with the observation of Martin CJ in

Plewright v Passmore 103 of 1996, unreported, 4 April 1997 that in

"...the words of the statute ... are not used in their common

understanding, they are used in a statute noted for its technical, legal

language. The words must be construed in their context and bearing

Martin CJ was concerned with the meaning of "average weekly number of

hours worked" (s.49(1) of the Act) but, in my view, his observation is

equally valid in the approach to be adopted to the phrase "any other

allowance" in section 49(2) of the Act. Little, if anything, is to be gained in

construing this phrase in context by consideration of dictionary definitions

of "allowance" or the approach adopted by other courts in relation to use of

I do not consider that the learned magistrates attempt to distinguish in

section 49(2) between inclusion or exclusion of allowances for the purpose

of calculating normal weekly earnings on the basis of whether or not the

benefit provided by the employer forms "part of the workers remuneration

in the ordinary sense" can withstand scrutiny. I agree with Mr Bryants

submission that each of the allowances specified in section 49(2) for

inclusion in calculation of normal weekly earnings would form part of a

workers remuneration in "the ordinary sense" and accordingly their express

inclusion in a workers remuneration would be redundant on the learned

I am satisfied that Mr Grant is correct in his submission that section 49(2)

creates a class by identifying specific allowances which are to be included

in a workers remuneration (for the purpose of calculating "normal weekly

earnings") in conjunction with the exclusion of "any other allowance". It

follows that the latter words are to be construed ejusdem-generis with those

allowances that have been expressly identified in section 49(2).

In R v Regos and Morgan [1947] HCA 19; (1947) 74 CLR 613 at 623-624, Latham CJ

explained the ejusdem-generis rule in the following terms:

"The ejusdem-generis rule is sometimes stated in very broad terms

as, for example, by Lord Campbell in R v Edmundson (1859) 28

LJMC 213 at p.215 � ,,Where there are general words following

particular and specific words, the general words must be confined to

things of the same kind as those specified. But in more recent cases

a very different view has been taken of the rules as for exa mple, in

Anderson v Anderson (1859) 1 QB 749, where it was said in the

Court of Appeal that ,,prima facie general words are to be taken in the

larger sense, unless you can find that in the particular case the true

construction of the instrument requires you to conclude that they are

intended to be used in a sense limited to things ejusdem generis with

those which have been specifically mentioned before (1985) 1 QB at

p.753. The ejusdem-generis rule is a rule of construction only; that

is, it is designed to assist in ascertaining the intention of Parliament

in the case of a statute and of the parties to a document in other cases

(Thorman v Dowgate Steamship Co Ltd (1910) 1 KB 410 at p.419).

The rule is that general words may be restricted to the same genus as

the specific words that precede them (Thames & Mersey Marine

Insurance Co Ltd v Hamilton, Fraser & Co (1887) 12 App Cas 484,

at p.490). Before the rule can be applied it is obviously necessary to

identify some genus which comprehends the specific cases for which

provision is made. In Tillmanns & Co. v S.S. Knutsford Ltd (1908) 2

KB 385, it was pointed out that ,,Unless you can find a category there

is no room for the application of the ejusdem-generis doctrine - per

Farwell LJ (1908) 2 KB at p.403: see also per Vaughan Williams LJ

(1908) 2 KB at p.395 and per Kennedy LJ (1909) 2KB at p.409. In

Mudie & Co v Strick (1909) 100 LT 701, Pickford J said: ,,You have

to see whether you can constitute a genus of the particular words,

and, if you can, then unless there is some indication to the contrary,

you must construe the general words as having relation to that genus.

If you cannot do this, then ... you must read all the particular words

separately, and take the general words separately also (1909) 100

LT at p.703. In S.S. Magnhild v McIntyre Bros & Co (1920) 3 KB

321, there is a full discussion of the rule by McCardie J in which it is

clearly shown that where it is sought to apply the rule to a case

where an enumeration of specific things is followed by general words

it must appear that the specific things ,,possess some common and

dominant feature so that they can be described as constituting a

In the case of section 49(2) of the Act, the genus constituted by the

provision is that of monetary allowances. I am satisfied that the Legislature

intended to exclude from calculation of a workers normal weekly earnings

only such allowances paid to a worker (other than those expressly referred

to in the provision). Such a construction accords with the ordinary and

usual meaning of the word "allowance" and is consistent with a broad and

liberal interpretation of the Act in favour of the worker.

I consider that the learned magistrate was correct not to have excluded the

respondents workers housing, meat, electricity and gas benefits from

calculation of his normal weekly earnings. Accordingly, the appeal is

dismissed. The appellant employer is ordered to pay the costs of the appeal