From the 19 July 2010, you were cleared to increase your hours of work to 21hpw. Therefore, effective from 19 July 2010 you will receive $792.53 equal to 21hpw at your NWE plus make up pay of $622.70 at 90% being $560.43 (totalling $1,352.96).

Therefore, please take note pursuant to Section 36 of the Workers Rehabilitation and Compensation Act, 1986, Health & Safety Services have determined that your weekly payments of workers compensation will be reduced to $798.19 effective from 1 June 2010 and reduce to $560.43 effective from 19 July 2010. ..."

1. Evidence received by the learned President[5] was to the effect that by this Notice the appellant agreed to pay the worker NWE of $1,415.23 while he was performing the non-teaching duties under the RRTW Plan. This was a change in its previous position that the alternative duties attracted a lesser rate of pay.
2. On 24 August 2010 the worker gave a Notice of Dissatisfaction with the variation. The issue was the rate of pay for the alternative duties done under the RRTW Plan. The worker contended that although the nominated rate of pay of $1,415.23 per week was the correct NWE amount, it was not the appropriate wage or salary to which he was entitled under s 58B(3) of the Act when engaged on alternative duties, and that the RRTW Plan was unreasonable in that it failed to provide for payment of the appropriate wage or salary for the worker's alternative duties as a Project Officer. The worker argued that he should be paid an appropriate wage or salary in respect of those duties.
3. No reference was made in these documents to the invocation of the review jurisdiction of the Tribunal under s 28B of the Act, but as explained above, we understand that question was intended to be raised by the Notice of Dispute referred to the Full Tribunal.
4. The question is whether the Tribunal has jurisdiction to entertain a review of the RRTW Plan on this basis under s 28B of the Act or on any other basis.

1. The learned President made reference to the competing submissions of the parties and to various authorities. He then stated his conclusion as follows:

"21 When the necessary pre-requisites have been met s 58B creates an express right to appropriate wages. That right now forms part of the regime of rehabilitation provided for by ss 26 and 28A of the Act. If a worker is undertaking alternative or modified duties as part of his or her participation in a rehabilitation program under s 26 or a rehabilitation and return to work plan under s 28A that participation creates a right to an appropriate wage.

1. In this case the participation was pursuant to s 28A. Section 28B(1)(b) creates a right of review of a provision of a rehabilitation and return to work plan if the relevant provision is unreasonable. The right to an appropriate wage, as provided for by s 58B, should be seen as a required provision in a rehabilitation and return to work plan. A failure to pay an appropriate wage should be seen as an unreasonable provision of the plan. It is therefore reviewable by the Tribunal. The fact that the plan may have expired is not relevant. Unlike the situation where the complaint is about the duties to be performed or the assistance to be provided, in which case it is too late to do anything about it if the plan has lapsed. ...
2. In this case the Tribunal can provide a remedy even if the plan has expired. It is able to make an award that will correct the financial loss that the worker will have sustained if the appropriate wage is not paid.
3. Accordingly, in my view what Gilchrist DPJ said in Winnall[6] needs to be re-evaluated in light of the amendment to s 58B. When Winnall was decided there was no provision in the Act that expressly provided for the payment of wages whilst a worker was undertaking alternative or modified duties. Hence there was no question that, at that time, the Tribunal did not have the jurisdiction to order that a compensating authority pay wages for work done. As Gilchrist DPJ alluded to, if there were a remedy it lay in the pursuit of proceedings elsewhere.
4. Accordingly, I conclude that the Tribunal has jurisdiction to provide the worker with the remedy that he seeks. Whether on the facts he is entitled to that remedy is yet to be determined. I therefore adjourn further consideration of the dispute to a date to be fixed to determine that issue."
5. We observe that the learned President did not simply decide that he had jurisdiction under s 28B of the Act to hear an application for a review of a RRTW Plan on the basis that it was unreasonable due to the lack of any provision specifying the appropriate wage or salary to be paid to a worker required to undertake alternative duties under the Plan. He also decided that he had jurisdiction to provide the worker with the remedy that he sought, being the making of an award, including with respect to RRTW Plans that had expired. That is to award the amount of the financial loss that the worker would have sustained if the "appropriate wage" was not paid. It would necessitate retrospective orders for payment of monies under s 28B with effect from RRTW Plan No 1 commencing 1 June 2010.

1. Section 79 of the Act establishes that the Tribunal has the jurisdiction conferred by statute. Section 89A specifies as follows:

(a) a decision on a claim for compensation including-

• (i) a decision redetermining a claim¹; or
  • (ii) a decision on a claim by the Tribunal, made in the exercise of the Tribunal's special jurisdiction to expedite decisions on claims²;

(b) a decision about the nature of rehabilitation services provided, or to be provided, for a worker³;

(c) a decision to vary, suspend or discontinue weekly payments;

(d) a decision on an application by an employer to have weekly payments payable to a worker employed by, or formerly employed by, the employer reviewed;

(e) a decision to disallow or reduce a charge for a medical service (unless the decision merely brings the charge into conformity with a rate of charge prescribed by regulation).

(2) However, a decision is not reviewable if declared not to be reviewable by or under this Act.

1. See section 53(7) & (7a).
2. See section 97B(3)(b).
3. Section 28B also provides for the review of a rehabilitation and return to work plan."
4. The pertinent rehabilitation provisions are found in Part 3 of the Act entitled "Rehabilitation and accident prevention programmes" and in particular in s 28A and s 28B which are as follows:

"28A(1) The Corporation may establish a rehabilitation and return to work plan for a worker who is incapacitated for work by a compensable injury.

(2) If a worker-

• (a) is receiving compensation by way of income maintenance; and
• (b) is (or is likely to be) incapacitated for work by a compensable injury for more than 13 weeks (but has some prospect of returning to work),

the Corporation must prepare a rehabilitation and return to work plan for the worker.

(3) In preparing the plan, the Corporation-

• (a) must consult with the worker and the employer out of whose employment the injury arose; and

(ab) must consult with the relevant rehabilitation and return to work co-ordinator under section 28D (if appointed); and

(b) should if practicable-

• (i) review medical records relevant to the worker's condition; or
• (ii) consult with any medical expert who is treating the worker for the compensable injury.

(4) A rehabilitation and return to work plan may impose obligations on the worker and on the employer.

(5) The Corporation must give the worker and the employer a copy of the rehabilitation and return to work plan.

(6) The plan is binding on the worker and the employer.

28B(1) A worker or employer may apply for review of-

(a) a decision to establish or not to establish a rehabilitation and return to work plan; or

(b) a provision of a rehabilitation and return to work plan,

on the ground that the decision or the provision is unreasonable.

(2) On review of a rehabilitation and return to work plan (or in consequent appellate proceedings), the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or the employer.

(3) Proceedings on a review under this section (or consequent appellate proceedings) do not suspend obligations imposed by a rehabilitation and return to work plan."

1. The Act is set out in a way that addresses the sequential features of the scheme. Part 3 deals with rehabilitation. Part 4 deals with compensation. That is the circumstances giving rise to an entitlement to compensation and the quantification of each particular type of compensation. Section 58B appears at the end of Part 4 under a heading, "Division 9 - Miscellaneous, Subdivision 3 - Other matters". It is in the following terms:

"(1) If a worker who has been incapacitated for work in consequence of a compensable injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).

(a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or

(b) the worker left the employment of that employer before the commencement of the incapacity for work; or

(c) the worker terminated the employment after the commencement of the incapacity for work; or

(e) the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.

(3) If a worker who has been incapacitated for work in consequence of a compensable injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation."[7]

1. Two decisions that analysed the s 28B jurisdiction, Winnall v State of South Australia (Department of Education and Children's Services)[8] and Dunstan v State of South Australia (Department of Education, Training and Employment)[9] were referred to in the reasons of the learned President and by counsel before this Tribunal. His Honour regarded it as decisive that subsection (3) of s 58B was enacted some considerable time after those decisions. However the decisions remain of importance to the considerations in this appeal.
2. In Winnall an incapacitated worker in receipt of weekly payments returned to modified duties on a RRTW Plan. During that period of modified duties his payments were reduced to 80%. That was because 12 months of compensation payments had been made.[10] The worker challenged that reduction, invoking s 28B(1) grounds of reasonableness and argued his pay should be set by determining a proper rate for those duties, not by the provisions reducing the weekly payments to 80% of their former amount on the anniversary of his payments.
3. At first instance the contentions by the respective parties were framed as follows. The worker said that when he was back at work, he was being paid remuneration in exchange for work done (ie under a contract of employment). The employer contended to the contrary. It said the worker was being paid compensation pursuant to the provisions of the Act and when the compensation reached its first anniversary, it was to be reduced to 80%.
4. The employer added that even if the worker was working under a contract of service the resolution of such a dispute was not something the Tribunal could determine. Remuneration issues did not fall within the focus of s 28B. It was also submitted that such a matter could not be raised after the RTW Plan had expired. The learned Deputy President merely stated that in his opinion the employer's contentions were essentially correct and the worker would have to go elsewhere to raise his arguments.[11]
5. The worker appealed and put the same argument. The Full Tribunal stated:[12]

"When stripped to essentials the gravamen of the worker's complaint is not dissatisfaction with the nature or content of the plans with which it would appear he was in agreement but rather with the level of payment he received whilst participating in the plans, in particular after May 1996 when his notional weekly earnings were reduced to 80% of their former level. Again it seems to us and consistent with what we have said above, that a section 28B review is not the appropriate forum for debating the appropriate level of payment for a worker on a rehabilitation plan. The fact remains that when he entered into the plan the appellant was in receipt of weekly payments pursuant to the Act which weekly payments could only be discontinued or reduced in accordance with sections 36 or 38A of the Act or varied pursuant to sections 38 and 39 which it will be recalled Olsson J. described in the G.M.H. Case[13] as constituting a comprehensive statutory code as to the manner and circumstances in which weekly payments once determined may be varied."

1. The Full Tribunal in Winnall also found the learned Deputy President at first instance was correct to conclude that given the plans before him were no longer on foot at the time the notice of dispute was issued there was no effective remedy the Tribunal could provide. By the time of the issue of the Notice of Dispute the plan had run its course and if the worker in such circumstances wished to challenge the payments made to him whilst involved in the rehabilitation plan, then options other than the one he had selected (if any) had to be utilised.[14]
2. In Dunstan the worker sought home help and the provision of a firm bed in order to facilitate her effective rehabilitation. The worker had been on a rehabilitation program, but that had run its term some three years earlier. The respondent had been requested to establish a new program. It formally rejected the request.
3. The worker's claim for reimbursement of costs of home help under s 32(2)(i) of the Act was rejected by the Tribunal on the basis that the provision was limited to costs in the nature of "medical and like expenses" and did not include home help. Section 32(2)(i) could not be used to authorise rehabilitation services by agencies not approved under s 32(8). But the Full Tribunal went on to describe the limits of s 28B. It stated:[15]

"In our view, a worker cannot use sections 26, 28A, 28B or 89A(1)(b) as a means of recovering within the context of a review of a rehabilitation programme or a rehabilitation and return to work plan, costs already incurred. The review provisions which relate to rehabilitation, about which more will be said later, are primarily focused towards future change rather than redressing alleged wrongs of the past.

[After observing that s 89A(1)(b) of the Act permitted reviews of a decision of a compensating authority not to establish a rehabilitation programme under s 26 of the Act, or not to include particular services within such a programme, the Full Tribunal continued]:

Accordingly, we do not think that section 28B created review rights that did not previously exist. We think that the review rights created by that section are complementary to those provided for by section 89A(1)(b), albeit, for the reasons which we explain shortly, we consider that the rights are confined to rehabilitation and return to work plans and are more limited in their ambit and effect than those conferred by the general provision."

1. The Full Tribunal went on to construe the worker's request as being a proposal for the establishment of a rehabilitation program containing provision for the supply of a bed and home help. That, it ruled, gave a right to review under s 89A(1)(b). It concluded that the requests were reasonable and the employer's rejection of the requests unreasonable.

The authority of The State of South Australia v Day

1. This was a case referred to by the learned President as well as by counsel before us. It involved a teacher who suffered an injury at work. Her claim was accepted and compensation by weekly payments commenced. In accordance with s 28A of the Act the employer established a RRTW Plan. This involved the worker performing essentially School Assistant functions. Assuming that she was entitled to the prescribed rate of pay for a School Assistant this gave a calculated product substantially higher than that which she was in fact receiving by way of compensation. She took proceedings under s 14 of the then Industrial and Employee Relations Act 1994.[16]
2. The Supreme Court ruled there was no claim to be had under s 14. Bleby J, with whom the other Members of the Court agreed, stated:[17]

"In my opinion, the functions of a SSO performed by the respondent were not performed under a contract of employment as a SSO but pursuant to a series of rehabilitation and return-to-work plans given statutory force by s 28A of the Compensation Act. There was never any intention on the part of the appellant and the respondent to enter into contractual relations, let alone a contract of employment to perform the duties of a SSO. As there was no contract to perform those duties, there was nothing on which the award could operate, and her claim, in so far as it was based on the award, was bound to fail."

1. This decision confirmed that the worker's argument in Winnall, based upon an asserted entitlement under a contract of employment, was misconceived. Work performed under the RRTW Plan both in Day and in Winnall was not performed under a contract of service, but in accordance with the worker's obligations in the RRTW Plan established under the Act. Moreover the payments made were not payments of wages. They were payments of compensation under the Act. Following the decision in Day, subsection (3) of s 58B was enacted.[18]

1. The appellant argued the worker's stance here was misconceived in that his claim was not for compensation, but for payment of an appropriate wage for work done which was a matter outside the jurisdiction of the Tribunal.
2. The appellant contended that the jurisdictional mandate of the Tribunal was limited to matters of compensation. Admittedly that would give rise to considerations of employment law where for example a contest existed over whether the claimant was a worker. But it did not extend to wage claims. The worker's claim here, duly characterised, made no pretence to be other than a claim for wages earned.
3. The worker's reliance on s 58B(3) as the source of a right vested in the worker to an appropriate wage or salary under the RRTW Plan was also misplaced. That provision had the more limited effect of imposing an obligation on an employer to pay a worker on alternative duties an appropriate wage or salary consistent with the intention of s 58B(3) to limit the liability of the Corporation to make payments of compensation in such circumstances. Its purpose extended no further. Nor did it incorporate a process for disputing the wage paid for alternative duties done under a RRTW Plan, notwithstanding that the obligations under such a plan were to be reasonable on both the part of the "worker and employer" as stated in s 28B(2).[19]
4. The appellant made reference to the dicta in Dunstan and Winnall and argued this Tribunal should adopt a consistent approach to the scope of s 28B.[20] Once the notional weekly earnings were determined, as indicated in Winnall, the focus of consideration for all matters including whether a provision was reasonable was to be found within the Act, including the provisions that set the notional weekly earnings. It was not by reference to industrial regulation.
5. The appellant added a scheme argument. Parliament had not intended disputes regarding the provision of s 58B(3) to be dealt with by the Tribunal. Rather they were to be dealt with by the WorkCover Ombudsman as expressly indicated by s 99D of the Act. That provision stated that the Ombudsman was to receive and investigate complaints about failure to comply with s 58B or s 58C and to give directions to the Corporation or any relevant employer in connection with the operational requirements of either section. Further that the Ombudsman was not entitled to investigate actions capable of being the subject of dispute resolution proceedings under Part 6A of the Act. Compliance with the obligation to pay an appropriate wage or salary under s 58B(3) was therefore not a matter intended to be capable of review under s 28B.
6. Finally the appellant contended that the Tribunal had no power under s 28B to decide that a RRTW Plan was unreasonable on the grounds that it did not include a provision for wage or salary and to then modify the Plan to provide for payment of an appropriate wage or salary. The appellant accepted that if the RRTW Plan had made provision for a wage or salary, then the question as to the unreasonableness of that provision could be determined but that was a different exercise from determining what an appropriate wage or salary was.[21]

1. The worker's contentions during the process of the appeal itself evolved from those made at first instance. In the written Outline of Argument,[22] the contentions focused on the interaction between the obligation of the employer to pay an appropriate wage or salary under s 58B(3), the asserted reciprocal right of the worker to be paid such an amount, and the intention of the legislation that the Tribunal have jurisdiction under s 28B of the Act to deal with any dispute in regard to that right by modifying the RRTW Plan to the extent necessary. That is, to ensure that it did not impose unreasonable obligations on the worker by requiring him to undertake the alternative duties whilst not being appropriately paid for them.
2. In this context it was submitted that the payments to the worker for the alternative duties were to be characterised as "earnings" or "wages", and to be distinguished from payments of weekly income maintenance. The entitlement to income maintenance was said to be separate and distinct.[23] On this basis the worker contended that the learned President's conclusions at para 21 and following should be upheld, namely that s 58B (3) created an entitlement in the worker to appropriate wages, and that the Tribunal had jurisdiction under s 28B to find that the RRTW Plan was unreasonable by not providing for payment of appropriate wages, and to make an award to correct any resultant financial loss.
3. In his oral submissions the worker argued that the issue before the Tribunal was to be resolved by an exercise of statutory interpretation and was required by authority to avoid construing jurisdiction provisions narrowly.[24] In this context it was contended that jurisdiction to make the orders sought arose under both s 89A and s 28B(1) as they were independent but complementary sources of jurisdiction as stated in Dunstan.
4. The worker referred to the definition of "compensation" in s 3, which provides that "compensation" included "any monetary benefit payable under this Act". Thus, the worker argued, if what was sought was capable of characterisation as a benefit payable under the Act, then the Tribunal had jurisdiction, under either s 89A or s 28B, to order that the benefit be paid as compensation.[25] He contended to make a distinction between monies received by way of compensation and monies received as wages in exchange for work was an erroneous distinction. Both could be monetary benefits payable under the Act. It was not the character of the payment but the fact of payment that mattered. Here it was payable because s 58B(3) said, "the employer must pay" an appropriate wage. That made it compensation for current purposes. Therefore disputes about an entitlement to such a benefit were disputes over a "claim for compensation" and were reviewable by the terms of s 89A(1)(a).
5. Independently the reward to be given for the work done under a RRTW Plan was a provision of the Plan for the purposes of s 28B(1). It was either an express or implied provision. If the provision or lack of it was contested by the worker as being unreasonable then the Tribunal had jurisdiction. What was reasonable was a mere question of fact in the given circumstances.[26] Moreover a person subject to the scheme ought to expect that issues involved in its operation were to be resolved in the scheme's designated forum, in this case the Tribunal.[27]

1. The arguments regarding jurisdiction in this matter are in truth an issue of statutory interpretation. The task is to ascertain the intent of the legislature. The approach required was succinctly stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[28] as follows:

"This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself [authorities omitted]. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text [authorities omitted]. The language which has actually been employed in the text of legislation is the surest guide to legislative intention [authorities omitted]. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision [authorities omitted], in particular the mischief [authorities omitted] it is seeking to remedy."

1. The exercise of statutory interpretation occurs in this case in a distinctive frame of reference. That is one separating the notion of jurisdiction from that of the power thereby exercised. Wells J in R v Bleby, Johns and Lean; Ex parte The Royal Australian Nursing Federation - Australian Nursing Federation Employees Section (South Australian Branch)[29] described the generality in the following terms:

"... It is, of course, true to say that, speaking generally, the word 'jurisdiction' means the authority which a court or other tribunal has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. Courts such as the High Court in England and the Supreme Courts in Australia (subject to limits imposed with respect to federal matters) are usually said to have an unlimited jurisdiction; a limitation of a court's jurisdiction may be imposed either as to the kind and nature of the matters of which it may take cognizance, or as to the geographical area which jurisdiction shall extend, or as to both such modes of restriction. But the jurisdiction of an inferior court or tribunal to whom mandamus, prohibition or certiorari may go, may be more extensively circumscribed, and, for the purpose of demarcating its limits, legislatures in England and in this country have, for very many years, adopted the only practicable means of doing so by indicating, expressly or by necessary implication, that certain facts must exist before the tribunal referred to may proceed with the hearing of a matter on the merits in pursuance of the purpose for which the tribunal was created. It has become conventional to refer to such a form of demarcation by saying that the legislature may provide that, before a tribunal has the authority to take cognizance of a particular matter or class of matters, certain facts, collateral to the issues on the merits, must be proved.

No stereotyped form of drafting has ever been prescribed, or become settled, whereby passages specifying the collateral facts to be proved may be rendered clearly distinguishable from those denoting the matters for determination on the merits. ...

In order to determine what (if any) collateral facts have been designated as essential to the jurisdiction, the legislation must be carefully analysed."

1. The other feature of the exercise to be undertaken is the role of implied as opposed to express jurisdiction or indeed some implied limitations. In Adelaide Assemblers Ltd v Kutos and Freeway Motors Ltd[30] the question was whether the Industrial Court, which had jurisdiction under s 17 of the Workers Compensation Act 1971 in relation to workers compensation claims, had jurisdiction to order contribution between employers. In ruling it did not have jurisdiction the Full Court stated the position as follows:[31]

"... We are left consider whether it is proper to interpret the words 'connected with the liability to pay ... and all matters and things ancillary thereto' as importing jurisdiction to award contribution as between the parties, that is to say, as bestowing a limited common law or equitable jurisdiction on the Court.

These words are used in the setting of an Act which is in the nature of a complete code, making detailed provisions for the proceedings which are to be taken in the various circumstances contemplated by the Act. Where a piece of legislation speaks only in general terms and does not descend to detail, it is much easier for a court to be able to interpret the Act liberally, and to import terms which it is reasonable to believe that Parliament would have included expressly if it had directed its attention to the particular problem. But where an Act is in the nature of a code, and particularly where, as in this case, it is a code which expressly provides for contribution in some circumstances, but not in those which have actually occurred, then it is much more difficult for a court to read general words such as those now under consideration as endowing the court with the particular jurisdiction which the respondent ... seeks to have imported. In our view, the absence of any reference anywhere in the Act to questions as between one employer and another (except in the case of successive employers of a man suffering from injury arising out of industrial disease such as we have already referred to) suggests strongly to us that Parliament did not have in mind that jurisdiction of this nature would be exercised by the Industrial Court. To read the Act otherwise would be to introduce a limited jurisdiction in common law and equity, a jurisdiction of an entirely different nature from the statutory jurisdiction already exercised by that Court. ..."

1. We deal firstly with the argument over the jurisdiction of the Tribunal under s 28B(1) to review a provision of a RRTW Plan on the ground that a provision is unreasonable. This jurisdictional question is to be considered apart from what the Tribunal might do if it concludes it has jurisdiction. That is whether it can or should modify the RRTW Plan, "to the extent necessary to ensure the plan does not impose unreasonable obligations on the worker or the employer".
2. The "provisions" are those countenanced in s 28A(4) and (6). The RRTW Plan in accordance with subs (4) may, and invariably does, impose obligations on the worker and on the employer. Subsection (6) decrees that the RRTW Plan is binding on the worker and the employer. Therefore broadly speaking the RRTW Plan is creative of both express and likely implied obligations and entitlements. Consequences follow in the event of non compliance. For example failure by the worker to comply with the obligations of a RRTW Plan may result in discontinuance of income maintenance payments on the ground of breach of mutuality. Failure to comply on the part of the employer may result in the imposition of a supplementary levy.
3. The establishment of a RRTW Plan is a requirement imposed by the Act upon the Corporation or the self-insured employer in circumstances described in subs 28A(2). Though the Corporation or the self-insured employer is charged with engaging in certain consultations and reviews of medical information when preparing the RRTW Plan, it makes a unilateral choice of which provisions will be included in the RRTW Plan. When one of the provisions obliges the worker to undertake alternative duties, whether for the employer or a third party and, as here, these duties fall outside the worker's pre-existing contract of employment, these often involve the exchange of work for wages.[32] In those circumstances, if it is established that payment of an appropriate rate has not been made, though the worker must continue to comply with the obligation to perform the duties,[33] then an issue of whether that itself is unreasonable may arise.
4. We interpolate momentarily. At the risk of stating the obvious and despite what is said in Day's Case, not all payments for work organised for the injured worker under a RRTW Plan arises from the statutory force of s 28A. Clearly some are performed under a contract of employment. Frequently RRTW Plans involve the worker working for a third party. As such the work is performed pursuant to a contract of employment. The RRTW Plan will no doubt provide an arrangement for make-up compensation if appropriate. The important point is that in RRTW Plans there may be found a myriad of arrangements. The common feature is an arrangement between the Corporation, the worker and the employer with the objective of promoting and assisting the injured worker to return, so far as the progress of his or her injuries permit, to his or her pre accident capacity.[34]
5. Section 28B(1)(b) operates once the RRTW Plan has been prepared by the Corporation and the worker and the employer given a copy of it.[35] At that point either the worker or the employer can apply for review of any provision in the RRTW Plan on the ground that it is unreasonable. At this point the collateral facts referred to by Wells J in Bleby's case will exist and ipso facto create the Tribunal's jurisdiction. The provision, or indeed the absence of the provision, in a RRTW Plan will constitute the "jurisdictional fact" which when challenged on the grounds of being unreasonable enlivens the Tribunal's jurisdiction.[36]
6. This approach to the construction of the provisions does not rely on the obligation imposed on the employer under s 58B(3) of the Act to pay an appropriate wage or salary. The grounds for challenge arise from the existence of the RRTW Plan itself. In this regard we agree with the view taken by Deputy President Judge Farrell that the insertion of s 58B(3) of Part 4, Division 9, Subdivision 3 of the Act by amendment did not create a new entitlement for workers to an appropriate wage or salary when on alternative duties. The purpose of the provision, in its context, was to reinforce the obligation on employers to pay appropriately for alternative duties and thus limit the liability of the Corporation to pay make-up compensation in such circumstances. The introduction of the provision in 2008 has added nothing to the scope of the Tribunal's jurisdiction as it existed prior to that time.
7. This view of the limited operation of s 58B(3) makes the scheme argument of the appellant appear redundant. An application for the modification of a RRTW Plan to ensure that it does not impose an unreasonable obligation on a worker to undertake alternative duties for payment of a wage or salary which is not appropriate, does not seek the enforcement of a perceived right vested in the worker by s 58B(3) of the Act. The considerations of the Tribunal on a review under s 28B will proceed independently of that. Compliance issues with respect to s 58B(3) remain to be dealt with by the Ombudsman under s 99D(1)(c) of the Act. Moreover compliance with s 58B(3) does not of itself become a matter capable of being the subject of dispute resolution proceedings, and the Ombudsman's investigative powers are not inhibited by the limitation on his powers under s 99D(3) of the Act.
8. We do not agree with the submission of the appellant that as the relevant Regulations do not specify that a RRTW Plan must also specify the wage or salary to be paid for that work, that the matter cannot come within the aegis of being, "a provision" that is unreasonable. Whether that is so or not will depend on the particular circumstances and may even turn on what steps, if any, the employer has taken to address its obligations in this regard including what consultations have taken place with the worker under s 28A(3) with respect to the preparation of the RRTW Plan. The standards and requirements imposed by the Regulations should be seen in any event as specifying the minimum standards and requirements with respect to the provisions to be included in the RRTW Plan rather than an exhaustive list of such provisions.[37]

The remedies available under the section 28B jurisdiction

1. The difficulties which face the worker in seeking a review of the RRTW Plan under s 28B lie not with the invoking of the jurisdiction of the Tribunal on the issue of the unreasonableness of a provision but with the remedy that may be granted. In particular the context raised here of a worker proceeding in a way that would be tantamount to a wages claim and beyond the power of the Tribunal under s 28B(2). We understand that is at the heart of what is at stake on this appeal.
2. As noted above the initial submissions of the worker sought to characterise the payments made for the alternative duties as earnings as distinct from income maintenance and implicitly that the Tribunal modify the RRTW Plan to provide for payments of earnings at a higher rate. This argument is at odds with the view of the Full Tribunal in Winnall that s 28B review is not the appropriate forum for debating the correct wage rate for a worker on a RRTW Plan.
3. The decision in Winnall should be examined in its factual context. The worker in Winnall, while carrying out the duties under the RRTW Plan, was at all times in receipt of income maintenance, not wages for work done or a combination of wages and compensation. Thus in Winnall when the worker was notified of the statutory reduction in the level of his entitlement to compensation to 80% in accordance with the provisions of s 35 as it then was he sought a review of those payments under s 28B. His case was against the reduction of the level of his payments. It was not strictly concerning the provisions of the RRTW Plan. Advancing the case in that way the worker sought a variation of the amount of his weekly payments of compensation. The Act is structured such that only Part 4 provides for variation, upon described circumstances, of the amount of weekly payment entitlement. The Full Tribunal in Winnall appropriately took the view that Part 4 could not be circumvented by invoking the powers of the Tribunal under s 28B.
4. We are given to understand the situation of the worker in the matter before us is different. From the time of the RRTW Plan which commenced on 1 June 2010, he was obliged to perform alternative duties. From that time he was paid a wage for hours so worked, together with compensation to maintain payments at the NWE level. As the number of hours gradually increased, so did the wage component and therefore the compensation component reduced proportionally. Ultimately the worker returned to work full-time and was in receipt of wages only. At least that is our appreciation of the situation though not derived from the reasons for decision. These circumstances, if established, may be a sufficient base upon which the worker's situation can be distinguished from Winnall.
5. In the event of that circumstance and depending on a conclusion of unreasonableness the Tribunal still has discretion to order modification of the RRTW Plan. Regard must be had to the evidence supporting the finding of unreasonableness. It must be stressed that every case depends on its own circumstances. What is reasonable is a mere question of fact in a given set of circumstances.[38] The unreasonableness must be considered in the context of the objects of the Act to promote rehabilitation and return to work. If unreasonableness arises from the circumstances in which the RRTW Plans were established or a failure to pay an appropriate wage or salary for alternative duties it is open to the Tribunal to consider whether that unreasonableness can be remedied by modifying the RRTW Plans to include a provision as to an appropriate pay rate. That is, it has jurisdiction to consider the merits of the application and what might be an appropriate variation to the RRTW Plan.

1. In our view the terms of s 28B review strongly suggest a prospective rather than a retrospective exercise of the power. As observed in Dunstan the review provisions relating to rehabilitation are primarily focused towards the future rather than the past. That general proposition appears to gain support from the language of s 28B(2) in the usage of the words, "... the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations". That seems to us to have a prospective sense. As earlier observed proceedings on a review or indeed consequent appellate proceedings do not suspend obligations imposed by a RRTW Plan.[39] But as an indication of Parliament's intention regarding retrospectivity this seems to us equivocal. It may merely indicate an intention on the part of the legislation that the progress of rehabilitation should not be delayed by review proceedings. It does not as such indicate authority to make a retrospective modification.
2. The question was addressed in Winnall although as indicated that decision is distinguishable on the facts as it related to a worker in receipt of compensation rather than wages. Nevertheless the conclusion both at the first instance and on appeal was that no modification can be made to an expired RRTW Plan whatever the circumstances. We note the learned President distinguished the effect of that decision on the basis of his interpretation of s 58B(3), an interpretation we disagree with.
3. In that context the learned President made reference to obiter comments in the decision of Multiserv Australia Pty Ltd v Stephens and Employers Mutual Limited.[40] That decision emphasised the two-step process involved in the exercise of the s 28B jurisdiction. The first step was the making of a decision as to whether a provision in a RRTW Plan was unreasonable. The next step was to deal with that by framing a remedy by way of modification of the RRTW Plan.[41] The conclusion in Multiserv was that the terms of s 28B of the Act did not preclude a decision on the question of unreasonableness even though the RRTW Plan had expired. That is a different matter than one conceiving a retrospective remedy. In particular the sort of remedy being pursued by the worker in the case before us.
4. The authorities have indicated strongly against imputing retrospective operation of legislation.[42] The courts have frequently declared that in the absence of some clear statement to the contrary an Act will be assumed not to have retrospective operation. While the cases are generally concerned with legislation which might be construed as reaching into the past to change the state of the then law, the reasoning must be the same as the limits assumed to be placed on the powers exercised as in s 28B(2).
5. In Australian Education Union v General Manager of Fair Work Australia and Others[43] the following pertinent rationale appears:[44]

"The preceding observations should not be taken as minimising the importance of the rationale underlying the common law principles of construction. In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law. The existence of those assumptions is, in the words of Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union:[45]

'... a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.' "

This statement by the Court is pertinent in our opinion because the rationale is such that it must extend beyond the assumed limits upon the operation of statutory provisions to the assumed limits on powers granted under statute.

1. In our view the question of the appropriate exercise of the power of the Tribunal to grant the remedy sought by the worker cannot be answered in any event due to the inadequate factual findings.[46] The lack of factual background against which the decision of the learned President was made has the result that it is not possible or appropriate to do any more than decide that the Tribunal has jurisdiction to entertain an application for review under s 28B of the Act premised upon an assertion that the RRTW Plans are challenged as unreasonable in failing to include a provision the worker be paid an appropriate wage or salary for the alternative duties designated to him under the RRTW Plan. The question as to what modification can be made to either a current or expired RRTW Plan in the event of a finding of unreasonableness can only be finally answered in the light of all the evidence and a consideration of the submissions.
2. The decision of the learned President that the Tribunal has jurisdiction under s 28B of the Act to hear the worker's application for review is upheld. The matter must however be remitted to the learned President for full hearing and the Tribunal's response to be considered in the light of all the facts.

1. As indicated earlier in our reasons this argument is rejected because in our view s 58B(3) does not create a right to a monetary benefit payable under the Act and claimable as "compensation". Indeed given our understanding of the purpose of the provision the character of the payment being a wage is intended to be distinguishable from and in contrast to the compensation component. Moreover it seems to us that if the worker seeks to characterise the claimed monetary benefit as compensation then the same structural problem occurs as was indentified in Winnall. That is the dominant provision setting the level of weekly payments is in Part 4 of the Act. Here there is no dispute that the weekly amount paid to the worker has been the NWE level. To characterise the payment as "compensation" and then to seek an increase in the amount of that weekly compensation would be to seek payment above the maximum allowed for this head of compensation and despite the provisions in Part 4 of the Act. The problem applies whether one approaches the matter from the perspective of a remedy under s 28B or a determination of the s 36 dispute under s 89A.
2. The appeal is dismissed.

1. This is an appeal by the State of South Australia against the decision of President Judge Jennings in which he concluded that the Workers Compensation Tribunal has jurisdiction to deal with the issue of whether Mr Holloway (the worker) can claim what is referred to in s 58B(3) of the Workers Rehabilitation and Compensation Act 1986 (the Act) as the "appropriate wage" as part of the provision of a Rehabilitation and Return to Work Plan pursuant to S28A of the Act.
2. The worker was employed by the Department of Education and Child Development (the Department) as a teacher. He suffered a psychological injury at work in about February 2010. He became incapacitated for employment as a teacher. His claim for compensation was accepted. His notional weekly earnings were set at $1415.23 gross per week. He has been undertaking alternative duties pursuant to Rehabilitation and Return to Work Plans (RRTW plans). Those duties are not teaching duties. They relate to the design of education premises. It is the rate of pay for those duties which he is contesting in these proceedings.
3. The factual background to this matter, the arguments addressed by the parties, the legislative underpinning and the relevant reasoning of the trial judge are set out in the judgment of McCusker DPJ and Hannon DPJ.
4. The Tribunal is bound by the decision of Robert Winall v The State of South Australia (Department of Education and Children's Services).[47] In that decision the full bench of the Tribunal decided that:

"... a section 28B review is not the appropriate forum for debating the appropriate level of payment for a worker on a rehabilitation plan. The fact remains that when he entered into the plan the appellant was in receipt of weekly payments pursuant to the Act which weekly payments could only be discontinued or reduced in accordance with sections 36 or 38A of the Act or varied pursuant to sections 38 and 39 which it will be recalled Olsson J. described in the G.M.H. Case (supra) as constituting a comprehensive statutory code as to the manner and circumstances in which weekly payments once determined may be varied."

1. The worker's contention, accepted by the trial judge in this matter, is that the amendment of s 58B in 2008 by the insertion of a new s 58B(3) has, when read with s 28B, broadened the jurisdiction of the Tribunal. I do not accept that proposition.
2. Section 58B(3) of the Act provides:

"If a worker who has been incapacitated for work in consequence of a compensable disability undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation."

1. Section 58B(3) sits within Subdivision 3 of Division 9 of Part 4 of the Act. Each of the sections in Subdivision 3 deal with duties or obligations of employers. The purpose of the Subdivision is the creation of obligations and duties that compel employers to do certain things in order to limit the liability of the Corporation.
2. Section 58A deals with the requirement to notify the Corporation of a worker returning to work and creates a pecuniary penalty for failure to do so. Section 58B(1) provides a pecuniary penalty in circumstances where an employer fails to provide suitable employment for which a worker is fit. Section 58B(2) limits the applicability of ss (1). Section 58C provides for notice to be given to a worker before termination of employment. It provides a pecuniary penalty for failure to do so and provides limits to the applicability of the pecuniary penalty.
3. The introduction of s 58B(3) into the Act does not create an entitlement pursuant to the Act. It cannot be cobbled on to the right of review in s 28B. The right of review in s 28B pertains to the reasonableness or otherwise of RRTW plans under Part 3 of the Act: Rehabilitation and Accident prevention programmes.
4. Section 58(3) creates an obligation on the part of the employer as against the Corporation. It does not give rise to an entitlement that the worker can enforce. The words used at the end of s 58B(3) "unless otherwise determined by the Corporation" make it clear that the requirement that the employer must pay an appropriate wage or salary in respect of a worker's duties can be modified by the determination of the Corporation.
5. The Act makes provision for workers to claim entitlements and to dispute determinations. An examination of the relevant provisions does not support the broadening of the jurisdiction of the Tribunal as contended by the worker. Section 99D of the Act provides for the WorkCover Ombudsman to receive and investigate complaints about failures to comply with s 58B or s 58C and to give directions to the Corporation and any relevant employer in connection with the operation or requirements of either section. Section 79 of the Act identifies the decisions that can be reviewed pursuant to the Act. It does not identify a review of a decision of the kind contended by the worker in this case.
6. Whether the worker could make a claim in the Industrial Court of South Australia pursuant to the Fair Work Act 1994 (SA) depends on whether he had a contract of employment. The trial judge has not made a finding as to whether the worker performs his current duties by way of a contract of employment or otherwise. If he has a contract of employment then his right to argue regarding the amount he should be paid falls squarely within the jurisdiction of the Industrial Court of South Australia to be found in s 14 of the Fair Work Act 1994.
7. Whether a worker performing work pursuant to a RRTW plan also has a contract of employment is a matter that must be determined by reference to the facts of each case. In this case the worker is a teacher. Teachers are employed by the South Australian government pursuant to the Education Act 1972 and the regulations under that Act. There has been no examination of the provisions of the Education Act and how those provisions might impact on whether the duties the worker now performs are performed pursuant to a contract of employment.
8. It is arguable that the effect of South Australia v Day[48] is that work performed pursuant to a RRTW plan cannot be regarded as work performed pursuant to a contract of employment. However the facts of Day can be distinguished from this case because Ms Day had been engaged on a series of temporary contracts and by the time the issue of what she should be paid pursuant to the RRTW plan was in question Ms Day was no longer employed by the Department. The work she performed could only be said to be part of the RRTW plan because she had no other ongoing relationship with the department.
9. Counsel for the respondent sought to support the worker's case by placing reliance on a statement made by the Honourable P Holloway a Minister in the Legislative Council regarding the amendment to the Act in 2008. Based on the remarks of the Minister he submitted that the Parliament intended that the Workers Compensation Tribunal have the jurisdiction to determine the appropriate wage in relation to work performed by Mr Holloway pursuant to the RRTW plan. I do not accept that is so. The Honourable Minister made the following statement:

"... If a matter under investigation by the Ombudsman was subject to dispute, it would be the Workers Compensation Tribunal that would deal with it, not the Industrial Court".[49]

1. The comment was made in response to and critical of a proposed amendment by the Honourable M Parnell. That proposed amendment would, if it had been passed, empower the Industrial Court of South Australia to enforce a direction or determination of the WorkCover Ombudsman with respect to penalties pursuant to s 58(1). Neither the amendment proposed by the Honourable Parnell nor the comment made by the Honourable P Holloway referred to s 58(3).
2. The task of statutory interpretation is set out in the Project Blue Sky decision:

**"**The fundamental object of statutory construction is to ascertain the legislative intention by reference to the language of the instrument as a whole. But in performing the task courts look to the operation of the statute according to its terms and to legitimate aids to construction".[50]

1. In my view the jurisdiction of the Workers Compensation Tribunal has not been broadened in the way contended by the worker.
2. I would uphold the appeal.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Notice of Dispute No 2980/2012 dated 10 July 2012 - Supplementary AB pp 1- 3.

[2] The first being the period from 1 June 2010 to 1 September 2010, the dates and periods of the "subsequent" disputed RRTW Plans not being specified.

[3] Appeal transcript 7 June 2012 at p 9.

[4] Appeal transcript 5 February 2013 at p 26.

[5] Para [9] of the Affidavit of Ms Burgess, Exhibit R1 (AB pp 34 - 35).

[6] Winnall v Department for Education and Children's Services [1997] SAWCT 7.

[7] The original s 58B(3) inserted by Act No 39 of 1988 bore no semblance to the current provision. That provision was deleted by Act No 35 of 1995 s 23B. It was reprised by Act 17 of 2008 s 35(2) and remained so save the word "injury" substituted for the word "disability" in 2011.

[8] [1997] SAWCT 55.

[9] [1998] SAWCT 48.

[10] Section 35(1)(h) of the Act at that time.

[11] Winnall v Department for Education and Children's Services [1997] SAWCT 7 at p 3.

[12] Winnall v State of Australia (Department of Education and Children's Services [1997] SAWCT 55 at p 5.

[13] General Motors-Holden's Automotive Ltd v Workers Rehabilitation and Compensation Corporation (1990-91) 55 SASR 395.

[15] [1998] SAWCT 48 at pp 13, 15.

[16] State of South Australia v Day [2000] SASC 451; (2000) 78 SASR 270 at para [15].

[19] Appellant's Outline of Argument paras [24], [26], [35].

[20] Appeal transcript 5 February 2013 at p 14.

[21] Appeal transcript 5 February 2013 at pp 3, 4, 9, 10.

[22] Received 5 June 2012 and which repeated the contentions put at first instance.

[23] Worker's Outline of Argument at para [25].

[24] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 at para [11].

[25] Appeal transcript 5 February 2013 at p 22.

[26] Waters and Others v Public Transport Corporation [1991] HCA 49; (1991) 103 ALR 513.

[27] Appeal transcript 5 February 2013 at p 28.

[28] [2009] HCA 41; (2009) 260 ALR 1 at para [47]

[29] (1973) 4 SASR 445 at 461, 463

[30] (1974) 9 SASR 102.

[32] An exception is the situation described in Last v WorkCover Corporation [2010] SASC 338.

[33] Section 28B(3). This will be discussed further on the question of retrospectivity.

[34] See objectives in Workers Rehabilitation and Compensation Regulations 2010 clause 23.

[36] Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5; (1999) 169 ALR 400 at para [28].

[37] Workers Rehabilitation and Compensation Regulations 2010 clause 23.

[38] Waters and Others v Public Transport Corporation [1991] HCA 49; (1991) 103 ALR 513.

[40] [2009] SAWCT 30 at paras [156] - [160].

[42] "Pearce and Geddes Statutory Interpretation in Australia", 7th Ed, Chapter 10.

[43] [2012] HCA 19; (2012) 286 ALR 625.

[44] Per French CJ, Crennan and Keifel JJ at para [30].

[45] [2004] HCA 40 at para [21].

[46] We do not know whether there is a current RRTW Plan. The only RRTW Plan in the material before us comprises the first plan for the period 1 June 2010 to 1 September 2010 and two subsequent plans collectively convering the period from 17 April 2011 to 18 October 2011: AB pp 36 - 42, 53 - 55.

[47] Winall v State of South Australia (Department of Education and Children's Services) [1997] SAWCT 55

[48] [2000] SASC 451; (2000) 78 SASR 270

[49] Hansard p3214 Legislative Council Thursday 5 June 2008_._

[50] Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 quoting Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297