Woolworths Ltd v Lister

LOWER COURT Compensation Court JURISDICTION : LOWER COURT CC 11580/02 FILE NUMBER(S) : LOWER COURT Armitage CCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41126/03

HANDLEY JA BEAZLEY JA IPP JA

27 AUGUST 2004 WOOLWORTHS LTD v RUTH ANN LISTER CATCHWORDS

COSTS - appeal succeeding on point not raised below - appellant not entitled to costs of appeal STATUTE - construction - reference to Act - Act repealed and re-enacted with modifications - Interpretation Act 1987 - reference to Act later repealed construed as reference to Act which re-enacted repealed Act with modifications FACTS

Section 42(8) of the Workers Compensation Act 1987 (the 1987 Act) defined "award" for the purposes of that section as meaning, inter alia, "an award or industrial agreement within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth". The definition was relevant in the application of s 42(1)(a) which fixed rates of weekly compensation by reference to "an award fixing or providing for the fixing of a rate for a weekly or longer period". The Conciliation and Arbitration Act 1904 was repealed in 1988 and replaced by a new Act which later, by amendment, became the Workplace Relations Act 1996. Section 42(8) of the 1987 Act was not amended to reflect the repeal of the 1904 Act and its replacement by the 1996 Act.

The worker was employed under the Woolworths Supermarket - NSW/ACT Agreement 1998 which had been certified under s 170LT of the Workplace Relations Act 1996. The Compensation Court held that this agreement was not an award as defined in s 42(8). The employer appealed and relied on s 68(3)(a) of the Interpretation Act 1987 which had not been referred to below. This provided that a reference to an Act which has been repealed and re-enacted with modifications extends to the re-enacted Act. HELD: (1) Section 68(3)(a) required the reference to the 1904 Commonwealth Act to be read as a reference to the 1996 Act because it had re-enacted the 1904 Act with modifications; (2) The 1987 Act did not disclose a contrary intention because the policy evident in the reference to the 1904 Act would not be affected if it was construed as extending to the 1996 Act; (3) Since the appeal had succeeded on a point not raised below there would be no order as to costs. ORDERS

2. Award of Compensation Court set aside and in lieu thereof order that the application for determination be dismissed.

4. The respondent is to have a certificate under the Suitors' Fund Act 1951.

5. Liberty to the appellant to apply, on 7 days notice to the WorkCover Authority, for an order that the Authority reimburse it for any weekly compensation payments made under the award that accrued after it was made.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41126/03

HANDLEY JA BEAZLEY JA IPP JA

27 AUGUST 2004 WOOLWORTHS LTD v RUTH ANN LISTER Judgment 1 HANDLEY JA: The worker was injured in the course of her employment at Woolworths supermarket at Merimbula on 5 June 2001. Her claim for weekly compensation under the Workers Compensation Act 1987 was heard by Armitage CCJ in the Compensation Court. It became necessary for the Judge to determine the worker's "current weekly wage rate" for the purposes of s 36, in accordance with s 42. Under s 42(1)(a) where the worker before being incapacitated was being remunerated under "an award fixing or providing for the fixing of a rate for a weekly or longer period" the current weekly wage rate was "the rate of remuneration under that award … for 1 week …". 2 Section 42(8) defined award for the purposes of that section as meaning, relevantly: "(a) an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force, (b) an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991 , (c) … and includes any such award, industrial agreement or other agreement or instrument as from time to time amended." 3 The problem in this case has arisen because of inadequate statute law revision. The Conciliation and Arbitration Act was repealed by the Commonwealth Parliament by the Industrial Relations (Consequential Provisions) Act 1988 consequent upon the passing of the Industrial Relations Act 1988. Amendments in 1996 included a change of name to the Workplace Relations Act 1996. 4 The Workers Compensation Act 1987 has been amended by 58 different statutes between 1989 and 2001 but para (a) of the definition was not updated. In 1991 para (b) was updated to acknowledge the existence of the Industrial Relations Act 1991 (NSW) but the Industrial Relations Act 1996 (NSW) was ignored. 5 At the relevant time the worker was employed under the Woolworths Supermarket - NSW/ACT Agreement 1998 which had been certified under s 170LT of the Workplace Relations Act 1996. Armitage CCJ reluctantly held that this was not an industrial agreement within the meaning of the Conciliation and Arbitration Act 1904. 6 The employer appealed and has presented a new argument based on s 68(3)(a) of the Interpretation Act 1987 (NSW) that was not raised below. This section provides:

"… in any Act or instrument: (a) a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being, and (b) … and a reference to a provision of the repealed Act … extends to the corresponding provision of the re-enacted Act …" 7 Section 68(4)(a)(i) provides that in that section Act includes a Commonwealth Act. 8 Since s 42(8) of the Workers Compensation Act refers to the Conciliation and Arbitration Act as a whole the Court is not directly concerned with the final limb of s 68(3) of the Interpretation Act which provides that a reference to a particular provision of the repealed Act extends to "the corresponding provision of the re-enacted Act". 9 When the focus is on a particular provision of the repealed Act, especially one which created or affected rights and obligations, the question whether a provision in the re-enacted Act in different terms is a "corresponding provision" will require close analysis. Although both provisions may deal with the same subject matter, the new provision may have such a different operation in creating or affecting rights and obligations that it cannot properly be characterised as a corresponding provision. 10 This question has been considered in New Zealand. In Winter v Ministry of Transport [1972] NZLR 539 Turner J giving the judgment of the Court of Appeal, referred to counsel's argument and at 541 continued: "He confined his argument exclusively to the submission that the sections were not 'corresponding' sections. This submission was founded upon the proposition that the 1970 provisions, taken as a whole were different from those of 1968. But this must be so whenever a new statutory provision is substituted for an old one. We read 'corresponding' … as including a new section dealing with the same subject matter as the old one, in a manner or with a result not so far different from the old as to strain the accepted meaning of the word 'corresponding' as given in the Shorter Oxford English Dictionary - 'answering to in character and function; similar to'. The new [section] answers to the old one … in character and function; it is similar in purpose, prescribes the same thing to be done, and is designed to produce the same result. We hold it to be a 'corresponding section'." 11 This passage was expressly approved by Lord Walker delivering the judgment of the Privy Council in Vela Fishing Ltd v Commissioner of Inland Revenue [2004] 1 NZLR 313, 324. 12 In the present case the comparison mandated by s 68(3)(a) is between the two statutes as a whole, there is no need to identify corresponding sections, and the inquiry is at a higher level of abstraction. The question whether the 1988 Act re-enacted the 1904 Act with modifications cannot be answered simply by considering whether the provisions of the new statute, in the language of Turner J, "taken as a whole were different". 13 The application of s 68(3)(a) is not confined to Acts which consolidate statute law without substantive amendments. Such Acts are rare in this State because for a very long time we have had legislation which authorises the reprinting of Acts in a certified form which incorporates all amendments. See Reprints Act 1972 (NSW) and earlier legislation. 14 There can be no doubt that the 1904 Commonwealth Act, in a broad sense, was re-enacted in 1988, albeit with extensive modifications. Each Act was the principal statute enacted by the Commonwealth Parliament under the conciliation and arbitration power in s 51(xxxv) of the Constitution. Each dealt with the same broad subject matter viz conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of more than one State. 15 The repealed Act made provision for awards and industrial agreements and so does the new Act. The new provisions dealing with these matters are different, but the end result is still an award or industrial agreement covering more or less the same subject matters. Awards and industrial agreements made under the new Act still fix the remuneration of workers employed under them. The new Act contained changes, but the question is whether these are so radical that they cannot properly be characterised as "modifications". 16 The relevant authorities appear to be Stevens v The General Steam Navigation Co Ltd [1903] 1 KB 890 CA and Hill v Villawood Sheet Metal Pty Ltd [1970] 2 NSWR 434 CA. In the former the question was whether, by virtue of the Interpretation Act 1889, a reference in the Workers Compensation Act 1897 to the Factory and Workshop Act 1895 could be construed as a reference to the Factory and Workshop Act 1901. Collins MR asked (893) whether the amendment was: "so radical an alteration of the previously existing section as not to fall within the term 'modification'? Modification implies an alteration, and it seems to me to be as much a modification of that which previously existed that [something] should be added as if a limitation had been imposed." 17 Hill v Villawood Sheet Metal concerned a savings clause, in language similar to s 68(3) of the Interpretation Act, in the Factory Shops and Industries Act 1962 which had repealed the Factories and Shops Act 1912. Sugerman P said at 437: "The next question is whether the repealed enactment is 're-enacted, without or without modification' by the 1962 Act. This … is a question of substance and not of form. It is not necessary … that the re-enactment should be in words identical with those of the repealed 'enactment' or contained in a section whose contents are identical with those of the section in which the repealed 'enactment' was to be found. The 1962 Act deals substantially [with] the same subjects as the repealed Act , but the wording used to achieve the same or similar ends and the distribution of subject matters amongst sections are not always identical." (emphasis supplied) 18 He continued at p 438: "The remaining question … is … whether the effect of this difference is, not that there has been a re-enactment of the repealed enactment with modification, but rather that what is to be found in the 1962 Act is an entirely new and different enactment which is not a re-enactment at all of anything contained in the 1912 Act … this is entirely a question of first impression … The relevant definition of 'modification' in the Shorter Oxford Dictionary is 'the action of making changes in an object without altering its essential nature'. Here the essential nature of the object in question, which is a power to make regulations, is not altered … the enactment contained in the 1962 Act is not something entirely new and essentially different from the repealed enactment … It is a re-enactment thereof with a modification." (emphasis supplied) 19 Asprey JA at 439 referred to the same dictionary meaning and added the dictionary meaning of modify as "to alter without making radical transformation". Mason JA said at 441 that in its context "the word modification should be understood as signifying a variation which does not effect an alteration in the essential nature of the enactment". 20 Mr Kenzie QC, who appeared for the appellant, took the Court through a table of the sections in the 1988 Act and the corresponding sections in the repealed Act. My first and abiding impression is that the 1988 Act was a re-enactment of the 1904 Act with modifications. In my view the former cannot be described as "an entirely new and different enactment", and it did not alter the essential nature of the 1904 Act. "[The new Act] deals substantially with the same subjects … to achieve the same or similar ends …" - conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. 21 Section 5(2) and (3) of the Interpretation Act provide: "(2) This Act applies to an Act … except in so far as the contrary intention appears in this Act or in the Act … (3) Wherever appropriate, this Act applies to a portion of an Act … in the same way as it applies to the whole of an Act …" 22 This means that the Interpretation Act applies to s 42(8) of the Workers Compensation Act and s 68(3) of the former applies to s 42(8) of the latter. 23 The purpose of s 42(8) is to identify industrial instruments which can be consulted to determine the current weekly wage rate of an incapacitated worker to fix the compensation to which he or she is entitled. The new Commonwealth Act provided for the making of the same types of industrial instruments which can be consulted for the same purposes. The substitution of a reference to the 1988 Act, and now to the 1996 Act for that to the 1904 Act in s 42(8), if authorised by s 68(3), would not affect the practical operation of s 42(8). The policy evident in the original form of s 42(8) and in its form, if s 68(3) applies, is the same. 24 The Interpretation Act and cognate legislation elsewhere has long provided that words in the singular include the plural unless the contrary intention appears. The operation of this provision in the Interpretation Act 1899 (NSW) was considered in Blue Metal Industries Ltd v Dilley [1970] AC 827. The Companies Act 1961 authorised the compulsory acquisition of the remaining shares in a company if the holders of 90% accepted a takeover offer. A takeover offer made by two companies acting jointly was accepted by the holders of over 90% of the shares in the target company and the offerors wished to compulsorily acquire the balance. The Companies Act did not apply in terms to takeover offers made by two or more companies acting jointly but the offerors argued that the Interpretation Act authorised a plural construction. Lord Morris, delivering the judgment of the Board said at 848: "The Interpretation Act is a drafting convenience. It is not to be expected that it would be used … to change the character of legislation. Acquisition of shares by two or more companies is not merely the plural of acquisition by one. It is quite a different kind of acquisition with different consequences. It would pre-suppose a different legislative policy." 25 Earlier Lord Morris had approved the following passage from the judgment of Lord Pearce in Sin Poh Amalgamated (HK) Ltd v Attorney General of Hong Kong [1965] 1 WLR 62, 67: "The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the Bill, would have rejected it." 26 These principles are relevant here because s 68(3) applies to s 42(8) "except insofar as the contrary intention appears". Any contrary intention must be found in s 42(8) as enacted in 1987, and the question posed by Lord Pearce is whether there are reasons to suppose that the Parliament, if offered an amendment to s 42(8) at any time after the 1904 Commonwealth Act had been repealed would have rejected it. Using the language of Lord Morris one asks whether an amendment to s 42(8) to insert a reference to the 1988 or 1996 Acts would change the character of the section to reflect a different legislative policy. 27 In my judgment a construction of s 42(8), with the aid of s 68(3), to include references to the 1988 and now the 1996 Commonwealth Acts would not involve any change in the legislative policy apparent in the section and there is no reason to suppose that the Parliament would have rejected such an amendment. The appeal therefore succeeds on this point. 28 Counsel for the respondent attempted to support the judgment of the Compensation Court on the basis of two contention points. The first was that even if the industrial agreement were an award as defined by s 42(8) it was not an "award fixing or providing for the fixing of a rate for a weekly or longer period" as required by s 42(1)(a). Rather it was said that so far as this worker was concerned it was an agreement fixing or providing for the fixing of a rate for an hourly period. The worker's hourly rate was $13.31 based on the rate for a full-time employee employed for an average of 38 hours per week over a four-week period. On this basis the worker's weekly rate was said to be $505.78, the rate for a full-time employee. 29 This submission is contrary to Rizzi v Grazcos Co-operative Ltd (1981) 153 CLR 669 where the Court had to consider s 9(8) of the 1926 Act that was re-enacted in identical language in s 42(1) of the 1987 Act. In that case the relevant award fixed a daily rate and provided that the ordinary hours of work were 40 hours for a five day week. Counsel for the employer contended that although it was possible to calculate a weekly rate the award did not fix or provide for the fixing of a weekly rate. In his submission the award must either specify a weekly rate or require a weekly rate to be struck. The High Court rejected these submissions. The majority said at 675: "In our opinion, an award fixes a rate for a weekly period even if it does not name the money sum payable for a week's work. To fix a weekly rate, in the ordinary meaning of that expression, includes to prescribe a standard by the application of which the sum payable for a week's work can be calculated or ascertained definitely … For example, an award which provided for payment of a minimum daily rate, and then provided that five days should be worked each week, would fix a weekly rate, for that rate would be capable of precise calculation. An award would provide for the fixing of a weekly rate if it prescribed a means by which a weekly rate could be determined, even if the rate could not be definitely ascertained from the award itself." 30 This industrial agreement did prescribe a means by which a weekly rate could be determined although the rate was not stated in terms in the agreement. It provided in cl 5.5.5 that the worker, as a part-time employee, was to be paid an hourly rate for her grade based on the appropriate weekly rate divided by 38 for her ordinary hours of 20 per week. This could be determined under cl 4.3 (definition of part-time employee) and cl 15.2 (ordinary hours of weekly employees, the latter being defined in cl 4.1 as including part-time employees). The agreement therefore did provide a means for determining a weekly rate for the worker with certainty namely 20 hours multiplied by $13.31 equal to $266.20. The first contention point fails. 31 The worker's second contention point was that if cl 5.5.5 provided for a weekly rate it must be the weekly rate referred to in that clause viz $505.78 from which her hourly rate was derived. It was then submitted that this rate, which substantially exceeded the worker's average weekly earnings, could not be the rate referred to in s 42(1)(a). The short answer to these submissions is that the worker's current weekly wage rate was that appropriate for a part-time employee rostered for 20 hours work a week. The second contention point also fails. 32 As I understand the case the worker had been paid weekly compensation on the basis of total incapacity at her relevant current weekly wage rate as defined by s 42(1)(a) on the basis that the industrial agreement is an award as defined in s 42(8). The worker succeeded in obtaining compensation at a higher weekly rate in the Compensation Court on the basis that s 42(1) and (8) did not apply to the industrial agreement. If I have correctly understood the facts, the appropriate order, to which the appellant is entitled as a matter of law, would be an award dismissing the worker's application for additional weekly compensation. 33 I presume that the worker has been paid compensation at the higher rate while this appeal has been pending. Section 38 of the repealed Compensation Court Act provided that an award for weekly compensation should not be stayed, pending an appeal, in respect of payments which accrued after it was made but if the appeal succeeded the Court could order WorkCover to reimburse the successful appellant under the Uninsured Liability and Indemnity Scheme. It has not been the practice of the Court to make such orders apparently because WorkCover would reimburse the successful appellant in any event. 34 Section 38 has been repealed but temporary transitional arrangements were provided for in the Compensation Court Repeal (Transitional) Regulation 2003. The Courts Legislation Amendment Act 2004 (Act No 68) has now inserted s 142O in the District Court Act to re-enact the former s 38 on a permanent basis. The Court cannot make any order against WorkCover for the reimbursement of the appellant unless and until WorkCover has been heard, assuming of course that an order will be necessary. The appropriate course is to reserve liberty to the appellant to apply for such an order on notice to WorkCover. 35 The appellant has succeeded on a point of law which was not taken below. In these circumstances the Court's practice has been to make no order for costs of the appeal in favour of the appellant. See NRMA Insurance Ltd v B & B Shipping & Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273, 282. The following orders should be made:

2. Award of Compensation Court set aside and in lieu thereof order that the application for determination be dismissed.

4. The respondent is to have a certificate under the Suitors' Fund Act 1951.

5. Liberty to the appellant to apply, on 7 days notice to the WorkCover Authority, for an order that the Authority reimburse it for any weekly compensation payments made under the award that accrued after it was made. 36 BEAZLEY JA: I agree with Handley JA. 37 IPP JA: I agree with Handley JA. **********

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