Hastings Deering (Australia) Ltd v Smith [2004] NTCA 13

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Hastings Deering (Australia) Ltd v Smith [2004] NTCA 13

PARTIES: HASTINGS DEERING (AUSTRALIA) LTD

v

SMITH, David John

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 2/04 (20118381)

DELIVERED: 27 October 2004

HEARING DATES: 3 September 2004

JUDGMENT OF: MARTIN (BR) CJ, ANGEL J & PRIESTLEY AJ

CATCHWORDS:

WORKERS COMPENSATION
Work Health Act 1986 (NT) – Appeal to the Court of Appeal from the Work Health Court – whether superannuation contributions are part of “remuneration” for the purposes of calculating “normal weekly earnings” – s 49(b) & (c) whether “ordinary time rate of pay” includes non-cash benefits – appeal dismissed.

Superannuation Guarantee (Administration) Act 1992 (Cth), s 11
Work Health Act 1986 (NT) s 49, s 49(2), s 53, s 64, and s 65
Re The Manufacturing Grocers’ Employees Federation of Australia and Another; Ex Parte The Australian Chamber of Manufactures and Another (1986) 160 CLR 341 at 351 and 356; Murwangi Community Aboriginal Corporation v Carroll (2002) 171 FLR 116 at 118; NT Drilling Pty Ltd v McFarland [2004] NTSC 23; applied.
Great Northern Railway Company v Dawson [1905] 1 KB 331; Dothie & Others v Robert Macandrew and Co [1908] 1 KB 803; Simmonds v The Stourbridge Glazed Brick and Fire Clay Company Limited [1910] 2 KB 269 at 274; Skailes v Blue Anchor Line Limited [1911] 1 KB 360 at 363; Doncaster Amalgamated Collieries Limited v Leech [1941] 1 KB 649 at 653; Izdes v LG Bennett & Company Pty Limited t/a Alba Industries (1995) 61 IR 439; The Queen v Portus and Another; Ex Parte ANZ Banking Group Ltd (1972) CLR 353; Thompson v Primary Producers Improvers Pty Ltd [2004] NTCA; May v Lilyvale Hotel Pty Limited (1995) 68 IR 112 at 116; Rigby v Technisearch Ltd (1996) 67 IR 68 at 91; Victims Compensation Fund Corporation v Brown and Others (2003) 201 ALR 260; Scott v Sun Alliance Australia Limited and Another (1993) 178 CLR 1 at 5, considered.
Ardino v Count Financial Group Pty Ltd 126 ALR 49, at 54; Reynolds v Southcorp Wines Pty Ltd and Another (2002) 122 FCR 301 at 318, distinguished.

REPRESENTATION:

Counsel:
Appellant: D Trim QC and P Barr
Respondent: S Southwood QC

Solicitors:
Appellant: Hunt & Hunt
Respondent: Ward Keller

Judgment category classification: A
Judgment ID Number: Mar0413
Number of pages: 28

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Hastings Deering (Australia) Ltd v Smith [2004] NTCA 13
No. AP2/04 (20118381)

BETWEEN:

HASTINGS DEERING (AUSTRALIA) LTD (ACN 054 094 647)
Appellant

AND:

DAVID JOHN SMITH
Respondent

CORAM: MARTIN (BR) CJ, ANGEL J & PRIESTLEY AJ

REASONS FOR JUDGMENT

(Delivered 27 October 2004)

Martin (BR) CJ:
Introduction
[1] This is an appeal against a decision of a Judge dismissing an appeal from a decision of the Work Health Court.
[2] The respondent was employed by the appellant as a heavy equipment fitter. During his employment the respondent sustained a permanent injury as a result of which he was partially incapacitated for work and suffered a loss of earning capacity. The respondent’s duties were changed to light duties and he now receives substantially less by way of remuneration.
[3] The Work Health Court determined that the respondent was entitled to weekly payments of compensation pursuant to the Work Health Act 1986 (“the Act”). The amount of compensation payable is assessed by reference to the respondent’s “normal weekly earnings”. The Work Health Court found that the contributions by the appellant to a superannuation fund in accordance with the Commonwealth Superannuation guarantee legislation scheme were part of the respondent’s “remuneration” for the purposes of calculating the respondent’s “normal weekly earnings”. On appeal a Judge upheld the Magistrate’s decision and approved of the Magistrate’s reasons. The sole ground for appeal is that the Judge erred in law in finding that the respondent’s normal weekly earnings were properly calculated for the purposes of the Act by adding the value of the superannuation contributions made by the appellant to the respondent’s weekly monetary wage.
Right to compensation
[4] The right of a “worker” (an “employee”) to compensation pursuant to the Act is set out in s 53:
“Compensation in respect of injuries
Subject to this Part, where a worker suffers an injury within or outside the Territory and that injury results in or materially contributes to his or her –
(a) death;
(b) impairment; or
(c) incapacity,
there is payable by his or her employer to the worker or the worker’s dependants, in accordance with this Part, such compensation as is prescribed.”
[5] The amount of compensation to be paid to an employee is set out in Div 3 of Pt V of the Act. Compensation payable for total incapacity and loss of earning capacity is set out in ss 64 and 65. Both sections involve a formula based upon “normal weekly earnings”. That expression is defined in s 49(1) in the following terms:
“Normal weekly earnings”, in relation to a worker, means –
(a) subject to paragraphs (b), (c) and (d), remuneration for the worker’s normal weekly number of hours of work calculated at his or her ordinary time rate of pay;
(b) in the case of a worker who had entered into concurrent contracts of service with 2 or more employers under which he or she worked full-time at one time for one employer and part-time at another time for one or more other employers – the gross remuneration for the worker’s normal weekly number of hours of work calculated at his or her ordinary time rate of pay in respect of his or her full-time employment:
(c) in the case of a worker who had entered into concurrent contracts of service with 2 or more employers under which he or she worked part-time at one time for one employer and part-time at another time for one or more other employers –
(i) the gross remuneration for the worker’s normal weekly number of hours of work calculated at his or her ordinary time rate of pay in respect of both or all of his or her part-time employments; or
(ii) The gross remuneration that would have been payable to the worker if he or she had been engaged full-time in the part-time employment in which he or she usually was engaged for the more or most hours of employment per week at the date of the relevant injury,
whichever is the lesser; or
(d) where
(i) by reason of the shortness of time during which the worker has been in the employment of his or her employer, it is impracticable at the date of the relevant injury to calculate the rate of relevant remuneration in accordance with paragraph (a), (b) or (c); or
(ii) subject to paragraph (b) or (c), the worker is remunerated in whole or in part other than by reference to the number of hours worked,
the average gross weekly remuneration which, during the 12 months immediately preceding the date of the relevant injury, was earned by the worker during the weeks that he or she was engaged in paid employment;”
[6] A number of allowances are included in “normal weekly earnings”. Section 49(2) provides as follows:
“(2) For the purposes of the definition of “normal weekly earnings” and “ordinary time rate of pay” in subsection (1), a worker’s 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 include any other allowance.”
Competing Propositions
[7] It is common ground that prior to the respondent’s incapacity, the appellant was paying superannuation contributions based on the respondent’s salary. It is also common ground that the contributions ceased upon incapacity. Contributions are not made when an incapacitated employee is in receipt of compensation pursuant to the Act.
[8] From the perspective of an employee receiving compensation pursuant to the Act, if the appellant’s position is accepted the employee is penalised by the incapacity. The employee ceases to receive the benefit of superannuation contributions previously paid by the employer prior to incapacity. The respondent submitted that this consequence is contrary to the purposes of the Act and the beneficial nature of its character.
[9] The case for the appellant centres on two fundamental propositions. First, that a proper reading of the definition of “normal weekly earnings” in s 49(1) necessarily excludes superannuation contributions by an employer from “remuneration” for the purposes of calculating normal weekly earnings. Secondly, that superannuation contributions made by an employer are not a reward to the employee for services rendered, but are in the nature of an impost imposed by legislation upon every employer. As such those contributions are not “earned” in the relevant sense for the purposes of s 49(1).
[10] In response the respondent contended that the concept of “remuneration” is wider than “salary” or “wages” and includes other benefits that form part of the reward for services rendered by the employee. As a matter of fact superannuation contributions represent part of the reward for services rendered. If the work is not performed, the contributions are not made. Authority and principle support the inclusion of superannuation contributions as does a beneficial construction of s 49(1).
Superannuation Guarantee Scheme
[11] The resolution of the issues presented depends upon the construction of the relevant provisions in the Act. For the purposes of that construction it is necessary to understand the nature of the superannuation guarantee scheme and the character of the employer contributions made pursuant to the scheme.
[12] The superannuation guarantee scheme is designed to ensure that a prescribed percentage of the income of all but a few exempt employees is set aside for the future benefit of employees. The scheme is aimed at increasing superannuation savings with a view to employees providing for their own retirement income.
[13] The Superannuation Guarantee (Administration) Act 1992 (Cth) (“SGAA”) provides for a superannuation guarantee charge to be imposed on an employer’s superannuation guarantee shortfall in respect of each financial year. The shortfall is determined on a quarterly basis by multiplying the total salary or wages paid to an employee for the quarter by a prescribed percentage. That percentage is currently nine percent. Tax is then levied upon this shortfall, but the employer may avoid liability to pay the tax by paying the amount of shortfall (“contributions”) to approved financial institutions. Payment of the shortfall by way of contributions to an approved institution is tax deductible, but payment of the tax on the shortfall is not deductible. Thus a very significant incentive exists for employers to pay the shortfall by way of contributions rather than as a tax on the shortfall.
[14] The shortfall is payable only on the “salary” or “wages” paid by an employer. The definition of salary or wages in s 11 of the SGAA does not include payments of the nature of compensation pursuant to work health or worker’s compensation type legislation. The Commissioner of Taxation is the relevant Government authority who administers the provisions of the guarantee legislation. A 1994 tax ruling specifically excludes from the operation of the guarantee shortfall provisions workers’ compensation payments to employees who do not attend or perform work.
[15] The institution to which the contributions are paid may be a registered or approved fund under the Commonwealth legislation. An account is created in the name of the employee. The fund manager deposits the contributions received from the employer to the credit of the employee’s account and invests the funds for and on behalf of the employee. The fund manager is entitled to deduct administration costs and is obliged to meet specified taxation liabilities imposed in respect of contributions.
[16] In the highly unlikely event that an employer chooses not to make contributions to an approved fund but to pay the tax, when the tax is paid the Commissioner of Taxation is required to set aside an amount equivalent to the amount of the employer’s guarantee shortfall for investment on behalf of the employee in an approved or complying fund. Administration charges are deducted.
[17] It is common ground that the appellant made contributions to an approved fund to be credited to the respondent’s account. The Trust Deed discloses that the fund exists solely for the benefit of members and the trustee must establish and maintain within the Fund a separate member’s account for each member.
[18] This brief overview of the scheme is sufficient to demonstrate the appellant’s point that there is no legal obligation upon an employer to make contributions. It appears that the incentive nature of the scheme was used in order to overcome difficulties associated with the lack of power in the Commonwealth to legislate with respect to superannuation.
[19] The employee has no right or power to require the employer to make contributions. The employee has no control over how the fund manager invests the accumulating funds. Access by the employee for personal use to the accumulating funds is not possible until the employee reaches the age of at least 55 years. Access at that time is restricted by law and can only occur if an employee has retired from full-time work.
[20] Until the employee fulfils the criteria for access, therefore, while beneficially entitled to the proceeds of the accumulating fund, those proceeds are not immediately available to the employee in the manner in which cash wages and non-cash components of weekly remuneration such as the provision of accommodation and a motor vehicle are immediately available to the benefit of the employee. Receipt of the benefit of an accumulated fund is deferred.
[21] Against that background of the legislative scheme, the appellant submitted that the scheme imposes an impost on employers and contributions should not be viewed as any form of remuneration earned by an employee. I do not agree with that submission. Speaking generally, and leaving aside the construction of the particular provision in s 49(1) of the Act, unconstrained by any authority I would regard contributions by the employer as earned by the employee as part of the reward for services rendered. As a direct consequence of an employee rendering services to an employer, the law requires the employer either to pay a specified amount or contribution to an approved fund or a tax to the Commissioner of Taxation. Either the contribution or the equivalent amount paid as a tax is credited to an account for the ultimate benefit of the employee. The amount to be contributed or paid is directly linked to the salary or wages of the employee. Salary or wages are rewards for services rendered. If the service is not rendered, the reward by way of salary ceases. In that event no guarantee shortfall is created and contributions cease.
[22] The intention of the guarantee legislation is that employees will be rewarded for their efforts as employees by payments emanating from the employer being credited to a fund established for the future benefit of the employee. In the ordinary sense of the word, and as a matter of fact, those payments are “earned” by an employee as a reward for the services rendered by the employee to the employer.
Superannuation contributions “earned” as part of “remuneration”
[23] The concepts of “earnings” and “remuneration” are well recognised as of wider import than “salary” or “wages”. Speaking generally, in the context of worker’s compensation legislation, earnings and remuneration frequently include non-cash components that are properly regarded as a reward for services rendered.
[24] In Great Northern Railway Company v Dawson [1905] 1 KB 331, the Court of Appeal held that the value to an employee of the use of a uniform was to be taken into account in assessing the employee’s earnings for the purposes of compensation under the Workmen’s Compensation Act 1897. The value to be assessed was held to be the value to the employee of the use of the clothing.
[25] In Dothie v Robert Macandrew & Co [1908] 1 KB 803 the Court of Appeal was concerned with whether the “remuneration” of an employee exceeded a particular amount. The Court held that the value to the employee of the reasonable board and food provided by the employer was part of the employee’s remuneration.
[26] The average weekly earnings of an employee for the purposes of the Workmen’s Compensation Act 1906 came under consideration in Simmonds v The Stourbridge Glazed Brick and Fire Clay Company Limited [1910] 2 KB 269. The value of an allowance for coal or house rent was regarded as part of the employee’s average weekly earnings. Darling J expressed the following view (274):
“In order to ascertain what those average weekly earnings were the judge ought to take into account not only the money wages of the workman, but also what he was entitled to receive in kind in his employment … ”.
[27] In Skailes v Blue Anchor Line Limited [1911] 1 KB 360, with the support of Farwell LJ, Cozens-Hardy MR made the following observations (363):
“Now “remuneration” is not the same thing as salary or cash payment by the employer. The word “remuneration” is only found in s 13 of the Act and in Sched I, par 2(a), and this latter paragraph satisfies me that remuneration involves precisely the same considerations as earnings. I do not think it is open to this Court, after our decision in Dothie v Robert Macandrew & Co, to take any other view. We there held that the value of board and lodging must be brought into account in considering whether the remuneration of the deceased man exceeded £250, and that the mere cash salary was not to be solely regarded.” (footnotes omitted)
[28] A different factual situation was considered in Doncaster Amalgamated Collieries Limited v Leech [1941] 1 KB 649. A soldier separated from his family by reason of his service received a family allowance which was paid direct to his wife. It was argued that the family allowance was not “earnings” within the meaning of the Workmen’s Compensation Act 1925. The Court held that the allowance was earned by the soldier. As Scott LJ said in dealing with the question of whether the allowance was earned (653):
“To my mind the answer is obvious. He is entitled to it and he does earn it, and none the less so because he is compelled to assent to the condition on which he earns it, namely, that it shall be paid direct to his wife.”
[29] The appellant relied upon the decision of Wilcox CJ in Ardino v Count Financial Group Pty Ltd (1994) 126 ALR 49. His Honour was concerned with an application for an order dismissing proceedings claiming unlawful termination of employment. The question in issue was whether superannuation payments by the employer were part of “relevant wages” as that expression was defined in the Industrial Relations Act 1988 (Cth) (“the IRA”). For present purposes “relevant wages” were defined to mean the “total amount of the wages that the employee received, or was entitled to receive, from the employer …”, but in respect of an employee whose contract of employment prescribed normal hours for the performance of the work did not include wages additional to normal wages in respect of additional hours of work performed.
[30] It was in the context of the definition of “relevant wages” that Wilcox CJ reached the conclusion that superannuation contributions were not “wages”. His Honour said (pp 54 and 55):
“I agree with counsel that the definition of “relevant wages” is concerned only with payments that are wages, strictly so-called. I do not think it includes payments made by an employer on behalf of an employee pursuant to a binding antecedent obligation, whether statutory or contractual. It is now commonplace for employers to make payments to a superannuation fund in respect of individual employees. This is usually because of a statutory obligation to that effect, sometimes because of a binding contractual obligation. If the situation is that the employer never had any option but to pay particular moneys to a superannuation fund, as distinct from making it available to the employee, the payment cannot properly be described as “wages”.
[31] Later in his Judgment Wilcox CJ referred to the definitions of “wage” in the Shorter Oxford English Dictionary and the Macquarie Dictionary and expressed the view that the emphasis on payment in those definitions made it difficult to argue that benefits other than money payments are “wages”.
[32] In my opinion, the decision in Ardino v Count Financial Group has no application to the construction of s 49(1) and the determination of the meaning of the word “remuneration” as used in that section. Indeed, Wilcox CJ subsequently recognised the distinction between “wages” and “remuneration” in the context of different provisions of the IRA. In May v Lilyvale Hotel Pty Limited (1995) 68 IR 112 his Honour included superannuation contributions for the purposes of assessment “remuneration” (at 116):
“That Parliament intended ‘remuneration’ in s 170EE(3) to cover more than salary and wages is suggested by the Act itself. The amending legislation that inserted the present s 170EE (Act No 97 of 1994) also inserted s 170D. That section excludes from subdivisions B, C, D, E and F of Division 3 employees whose ‘relevant wages’ exceed particular amounts. Plainly, the word ‘remuneration’ was chosen, for s 170EE(3), in order to denote a concept wider than wages. Non-monetary benefits are not wages: see Ardino v Count Financial Group Pty Ltd (1994) 1 IRCR 221 at 228-229; 57 IR 89 at 94-95. But they fall within the concept of remuneration”.
[33] The decision of Hely J in Renolds v Southcorp Wines Pty Ltd (2002) 122 FCR 301 is also readily distinguished. The particular issue under consideration concerned the calculation of an annual leave entitlement pursuant to the Annual Holidays Act 1944 (NSW) which depended upon the entitlement to receive “ordinary pay” as that expression was defined in that Act. Hely J determined that there was “no foundation on the evidence for a conclusion that the non-cash benefits provided to the applicant form part of his ordinary pay.” His Honour was of the view that the provision of a company car for use by an employee “is not within the ordinary notion of pay for hours worked”. As to superannuation contributions, his Honour said (318):
“Amounts paid by the company to a superannuation fund may be a cost to the company in consequence of the employment, but the employee cannot access the benefits derived from those contributions except in the circumstances permitted by the trusts on which the fund is constituted. The employer’s contributions to that fund are not part of the employee’s ordinary pay.”
[34] Hely J was not concerned with the wider concept of “remuneration”. In my view his Honour’s decision has no application to the circumstances under consideration.
[35] The decision of Wilcox CJ in May v Lilyvale Hotel that superannuation contributions are part of “remuneration” for the purposes of s 170EE of the IRA has been consistently followed. Without referring to that decision, Beazley J adopted the same approach in Izdes v LG Bennett & Co Pty Limited (1995) 61 IR 439. In the context of assessing compensation for wrongful termination of employment pursuant to the provisions of the IRA, Beazley J noted that the employee had lost the benefit of superannuation and that the value of the superannuation contribution was to be included in the amount of compensation.
[36] In Rigby v Technisearch Ltd (1996) 67 IR 68, Marshall J specifically agreed with the views of Wilcox CJ in May v Lilyvale Hotel as to superannuation payments. His Honour referred to the 1986 national wage case in which a claim for superannuation payments was advanced as a claim in lieu of a claim for a three percent wage increase and to the national wage principle dealing with superannuation adopted by the Australian Conciliation and Arbitration Commission. Against that background, and for the purposes of s 170EE of the IRA, Marshall J expressed the view that “superannuation contributions by employers are in the nature of payments in respect of work performed by employees” (91). His Honour continued:
“Superannuation is unquestionably, in my view, when paid into a fund by an employer on behalf of an employee, part of the remuneration of the employee. Award superannuation has grown since 1986 and in addition, the Superannuation Guarantee Scheme underpinned by the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth) has extended compulsory superannuation coverage to employees not employed under award conditions.”
[37] The authorities concerned with s 170EE of the IRA to which I have referred demonstrate a settled approach to the concept of “remuneration” in the context of that Act. For present purposes, s 170EE is concerned with the assessment of compensation following unlawful termination of employment where reinstatement is impracticable. Section 170EE(3) directs that in working out the amount of compensation:
“the Court is to take regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment …”.
[38] The appellant submitted that the broad interpretation is understandable in the context of s 170EE because the purpose of assessing “remuneration” in that context is to determine a one-off payment of compensation for unlawful termination. As the appellant put it, “the courts have understandably adopted an approach which incorporates all possible incidents and benefits of employment for that purpose”. The appellant sought to distinguish that context from the assessment of ongoing weekly benefits in the context of an income maintenance scheme.
[39] The nature of superannuation payments was considered by the High Court in Re The Manufacturing Grocers’ Employees Federation of Australia and Anor; Ex parte the Australian Chamber of Manufacturers and Anor (1986) 160 CLR 341. The issue before the court concerned the jurisdiction of the Conciliation and Arbitration Commission to hear proceedings involving claims for superannuation benefits for employees. It was argued that such claims did not comprise industrial disputes within the meaning of s 51(XXXV) of the Constitution and did not comprise disputes as to an industrial matter within the meaning of s 4 of the Conciliation and Arbitration Act 1904 (Cth) (the “CAA”). In order to qualify as an industrial dispute the proceedings had to relate to any of “(b) the privileges, rights and duties of employers and employees”, “(c) the wages, allowances and remuneration of persons employed or to be employed” and “(h) the mode, terms and conditions of employment”. In a joint judgment the court held that the claims related to an industrial matter which was capable of being the subject of an industrial dispute within the meaning of the CAA.
[40] The court described the claims before the Commission as “no more than claims for payments to be made by employers by way of contributions to superannuation funds answering a particular description” (351). The court observed that the employee’s right to superannuation benefits would arise under the Trust Deed by which the particular superannuation fund was constituted and not under the relevant award. In that context, and in the context of a submission that superannuation entitlements were by way of provision for the social security or welfare of employees and for that reason could not form the subject of an industrial dispute, the court said (356):
“No doubt the payment of remuneration may obviate to a greater or lesser extent the need for government to provide for the social security or welfare of its citizens, but that is not to say that remuneration must be seen as payment of that kind and not as a reward for service – in the case of superannuation benefits, often as a reward for long service.”

[41] Submissions were put to the court based on the fact that the claims were for payments in respect of which employees would have no entitlement until the relationship of employer and employee had ceased to exist. The court observed that the fact that there is no immediate benefit to employees in a tangible form does not mean that the payments could not pertain to relations of an employee with his employer. The court observed (356):
“Those payments [contributions by an employer to a superannuation fund] do not cease to be remuneration for service during the relationship merely because the benefit from them is deferred until after the service has been finally performed and the relationship has ended. The obligation of the employer to make the payments ends with the relationship between him and his employee unlike the obligation of an employer to pay a pension, which necessarily extends beyond the period of employment. It is in our view of no significance that an employee receives no immediate benefit, other than such interest as he might have in the superannuation fund, from the payment of contributions to the fund by his employer.”
[42] In response to a submission based upon the fact that payments are made to third parties, namely, trustees of the superannuation funds, the court adopted the words of Menzies J in R v Portus; ex parte ANZ Banking Group Ltd (1972) 127 CLR 353 that payments to a superannuation fund are “an incident of the employment”. Having adopted that expression, the court continued (357):
“Nor can it be said that the payments contemplated by the claims in the present case will be made by the employer as the agent for the employee. There is no reason why those payments should be seen in any other way than as contributions by an employer to a fund for the benefit of an employee. No doubt the payments represent money earned in an industrial relationship, but they do not represent money to which an employee is himself presently entitled. They must be regarded as having been made to the fund by the employer in his capacity as employer and not as an agent acting on behalf of an employee.”
[43] The observations of the High Court to which I have referred amount to an emphatic rejection of the appellant’s proposition that superannuation contributions by an employer cannot amount to a reward for services rendered because the benefit from the contributions is not immediately available in a tangible form to the employee and is deferred until retirement. The Court regarded the fact of deferment as of “no significance”. Notwithstanding the delay in receipt of the tangible benefit, the Court regarded the superannuation contributions as “a reward for service” that was “earned” by the employee. Although the payments by the employer to the fund were made in the employer’s capacity as employer and not as agent acting on behalf of the employee, they were payments “for the benefit” of the employee.
[44] The industrial landscape of 1986 in which the High Court delivered the unanimous decision in Re The Manufacturing Grocers’ Employee Federation encompassed a claim for increase in all wages and salaries, coupled with the reserving of leave to an employer for a variation if the employer had improved the benefits of an existing employee superannuation fund by increasing the employer’s contribution by an amount equal to three percent. It would be a strange consequence, and unfair to employees, if the introduction of the superannuation guarantee scheme converted the character of employer superannuation contributions from remuneration earned by the employee as reward for services rendered into merely an impost upon employers.
Construction of Section 49
[45] This Court has taken a broad view of the concept of remuneration for the purposes of determining “normal weekly earnings” as defined in s 49(1) of the Act. In Murwangi Community Aboriginal Corporation v Carroll (2002) 171 FLR 116, this Court held that non-cash benefits received by an employee in respect of rent, board and electricity are part of the employee’s remuneration and are not “other allowances” as contemplated by s 49(2). The essence of the Court’s reasoning is found in the following passage at 118 [9]:
“In our view there can be little doubt that the remuneration of a worker in this case is not limited to the wages paid to the worker but extends to include benefits of other kinds received by the worker in respect of services rendered for or on behalf of the employer. The identified non-monetary benefits form part of the reward for work done and services rendered and therefore comprise “remuneration … earned by the worker …””.
[46] As to the issue of “allowances” and the operation of s 49(2), the Court held that s 49(2) encompasses both payments that would qualify as an “allowance” and others that would not. The Court determined that the excluded payments were limited to “allowances” other than those specifically identified in s 49(2). Non-cash benefits received by an employee in respect of rent, accommodation, electricity and food were held to be “part of the remuneration of the worker simpliciter” and not “other allowances” for the purposes of s 49(2).
[47] In substance, therefore, for the purposes of calculating normal weekly earnings, “remuneration” … “earned” has been held to include non-cash components properly categorised as part of the reward for work done and services rendered.
[48] As to superannuation contributions by an employer, the decision of the Judge in the case under consideration was followed by another Judge of this Court in NT Drilling Pty Ltd v McFarland [2004] NTSC 23. The essence of the Judge’s reasoning appears in the following passage [9] and [10]:
“The statutory obligation imposed upon the employer is to make payments which are ultimately for the benefit of the worker. The receipt of that benefit may be deferred but will be received by the worker upon fulfilment of the relevant preconditions. Although the payments are made pursuant to a statutory obligation, they are in the nature of part of the reward payable by the employer to the employee for work done by the employee in the course of his employment with the employer … . The payments differ from a tax in that they are made for the benefit of the worker as an individual. If the statutory scheme was not in place the worker would be required to expend part of his wages in order to achieve the benefit provided by the scheme.
In my opinion the superannuation contributions are to be regarded as remuneration simpliciter for the purposes of the definition of “normal weekly earnings” in the Work Health Act. The amount payable as a superannuation contribution is therefore to be included in the calculation of normal weekly earnings.”
[49] In my opinion, unless constrained to determine otherwise by the proper construction of s 49(1), the broad concept of remuneration should be applied to include superannuation contributions by the appellant as part of the remuneration earned by the respondent for the purposes of calculating “normal weekly earnings” pursuant to s 49(1) of the Act. The appellant submitted that I am so constrained because properly construed s 49(1) requires the conclusion that contributions are not part of remuneration for these purposes. The appellant contended that a contrary construction of the provision will lead to iniquitous results between different classes of employees.
[50] As to the general approach to be taken to the construction of s 49(1), I discussed the general purposes and construction of the Act in Thompson v Primary Producers Improvers Pty Ltd [2004] NTCA 12. I will not repeat that discussion. A purposive construction is required and, as the Act is beneficial in character, it should be construed liberally in favour of the employee. Bearing in mind the context in which the relevant provisions appear, together with the purposes of the Act and the beneficial nature of its character, the Court must determine “the meaning the relevant words used require” (Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260 at [33]). Although the general purpose and policy underlying the Act seeks to avoid or ameliorate the adverse impact that injury and incapacity would otherwise have upon an employee’s income, and to that extent the scheme of the Act may generally be described as an “income maintenance” scheme, the Act does not establish a scheme that provides for compensatory damages.
[51] The respondent submitted that the construction of the provision relating to “normal weekly earnings” in s 49(1) of the Act is quite straightforward. By reason of subpara (d)(ii), where an employee is remunerated in whole or in part other than by reference to the number of hours worked, the normal weekly earnings of the employee is defined as the average gross weekly remuneration earned by the employee over the previous twelve months. Superannuation contributions by the appellant were part of the respondent’s remuneration. Thus the respondent was remunerated in part other than by reference to the number of hours worked and subpara (d)(ii) applies. The average gross weekly remuneration of the respondent is determined by adding the superannuation contributions to the cash component of the respondent’s remuneration.
[52] In response to the appellant’s point that such an interpretation would leave no work for para (a) to do, the respondent pointed out that although para (a) appears at the head of the paragraphs concerned with normal weekly earnings, and for that reason might appear to be the major paragraph, it is subject to paras (b), (c) and (d). In those circumstances it is not surprising that para (a) might have little work to do.
[53] The appellant submitted that the interpretation for which the respondent contended would produce an incongruous and unfair result. Subpara (d)(ii) is expressly subject to paras (b) or (c) and, by reason of the wording of paras (b) and (c), remuneration for the purposes of those paragraphs cannot include superannuation contributions by an employer. Thus employees whose normal weekly earnings are calculated by reference to paras (b) and (c) would be worse off than those whose normal weekly earnings are assessed pursuant to subpara (d)(ii). The respondent contended that the Legislature could not have intended such a result.
[54] Paragraphs (b) and (c) apply where the injured employee had entered into concurrent contracts of service with two or more employers. In that situation, normal weekly earnings are determined by reference to the gross remuneration of the employee calculated at the employee’s “ordinary time rate of pay” either in respect of the full time employment or in respect of the part time employment. The appellant argued that remuneration calculated at the “ordinary time rate of pay” cannot include superannuation contributions by an employer which are not received and immediately available for disposition by the employee.
[55] The expression “ordinary time rate of pay” is an expression that is well understood in the industrial context. In Scott v Sun Alliance Australia Limited (1993) 178 CLR 1 at 5, in a joint judgment the High Court made the following observations:
“The expression “ordinary time rate of pay” is well known in the industrial relations field in Australia and New Zealand. It and similar terms have long been used in legislation. Unless the context otherwise requires, “ordinary time rate of pay” means the rate of pay for the standard or ordinary hours of work in contrast to the overtime or penalty rate of pay for hours of work other than the standard or ordinary hours. When expressed by reference to a week, it refers to the product of multiplying that hourly rate by the standard thirty-five, thirty-eight or forty hour week, as the case may be, fixed by legislation, industrial award or agreement.” (footnotes omitted).
[56] On the appellant’s argument, for employees covered by paras (b) and (c), “normal weekly earnings” means gross remuneration for normal weekly number of hours worked calculated at the ordinary time rate of pay. As the remuneration is calculated by reference to ordinary time rate of pay, necessarily superannuation contributions by an employer and non-cash components of the remuneration are excluded.
[57] In my opinion, the appellant’s submission overlooks the effect of the definition of “ordinary time rate of pay”. Section 49(1) of the Act defines “ordinary time rate of pay” in the following terms:
“Ordinary time rate of pay means –
(a) in the case of a worker who is remunerated in relation to an ordinary time rate of pay fixed by the terms of his or her employment – the time rate of pay so fixed; or
(b) in the case of a worker –
(i) who is remunerated otherwise than in relation to an ordinary time rate of pay so fixed, or partly in relation to an ordinary time rate of pay so fixed and partly in relation to any other manner; or
(ii) where no ordinary time rate of pay is so fixed for a worker’s work under the terms of his or her employment,

the average time rate of pay, exclusive of overtime other than where the overtime is worked in accordance with a regular and established pattern, earned by him or her during the period actually worked by him or her in the service of his or her employer during the period of 12 months immediately preceding the date of the relevant injury.”
[58] Paragraph (a) of the definition reflects the common understanding of the expression in the industrial context as explained by the High Court in Scott v Sun Alliance. However, subpara (b)(i) of the definition extends the reach of the expression “ordinary time rate of pay” to circumstances where an employee is “remunerated” otherwise than in relation to an ordinary time rate of pay or “partly in relation to an ordinary time rate of pay … and partly in relation to any other manner”. The word “remunerated” is used rather than “paid”.
[59] The Legislature has recognised that not all employees are remunerated solely by reference to an “ordinary time rate of pay” as that expression has been understood in the industrial context. Provision is made for the employee who is remunerated wholly or partly in some way other than by reference to such an ordinary time rate of pay. In that situation, for the purposes of s 49(1), “ordinary time rate of pay” means the “average time rate of pay” earned by the employee during the previous twelve months (exclusive of overtime other than where overtime is worked in accordance with a regular and established pattern).
[60] The “average time rate of pay” of an employee whose remuneration is comprised of both cash and non-cash components and employee contributions can readily be calculated. The total remuneration is comprised of three components. First, the cash component that is immediately available to the employee. Secondly, the value to the employee of the non-cash components such as accommodation etc. Thirdly, the amount of employer superannuation contributions. Having arrived at the total remuneration by the addition of those three components, that total is placed against the number of hours worked to give an “average time rate of pay”. That average time rate of pay becomes the “ordinary time rate of pay” for the purposes of calculating the normal weekly earnings of employees who fall within paras (b) and (c) of the definition of “normal weekly earnings”.
[61] This construction does not produce an incongruous or unfair result between employees. Quite the contrary. The primary purpose of the legislation is achieved in a manner which is fair to employees who would otherwise lose the benefit of employer contributions by reason of their incapacity.
[62] The result is also fair to employers. The amount that was being contributed by an employer prior to the incapacity of the employee continues to be paid.
[63] Contrary to the appellant’s submission, no element of double dipping is involved. The reward for services rendered is received in a different manner. While the employee is working and contributions are being made by the employer, the contributions are an immediate reward for the employee by way of increases in the accumulating fund in which the employee has a vested interest. During incapacity, the reward is received by way of the payment of the amount of contributions directly to the employee. These direct payments can reasonably be viewed as compensation for the lack of contribution to the accumulating fund.
[64] I appreciate that in one sense payment directly to an incapacitated employee of contributions otherwise payable to an approved fund is providing money directly into the pocket of the employee which was not immediately available to the employee prior to incapacity. In addition, at the time of incapacity it is impossible to know what benefit the contributions previously made to the fund will ultimately provide to the employee. Counsel for the appellant pointed out that contributions to the fund are subject to administrative costs and taxation. He submitted that payment of contributions direct to an employee during incapacity will, therefore, result in overpayment to the employee. That submission overlooks the likelihood that, after expenses and tax, the accumulating fund will increase in value through investment.
[65] In my opinion the construction that I favour is required by the words of the provisions of s 49(1). Notwithstanding the mathematical impossibilities, this construction of the relevant provisions in their entirety, considered in the context of the Legislative scheme, is a construction which promotes the purposes of the scheme in a sensible and practical manner. The alternative construction for which the appellant contended would tend to defeat the purposes of the scheme by placing the incapacitated employee in a worse position. The reward for services rendered would be reduced by reason of the incapacity.
[66] I would dismiss the appeal.
Angel J:
[67] I concur with the Chief Justice.
Priestley AJ:
[68] I agree with the Chief Justice