Compensation consequences for casual having no ordinary hours

Cases

Compensation consequences for casual having no ordinary hours

A casual employee who worked all his time in overtime hours has had his workers compensation reduced. The casual worker had no ordinary hours of work and therefore could not receive workers compensation based on an ordinary time rate of pay, the Supreme Court of Tasmania has found.

WantToReadMore

Get unlimited access to all of our content.

10/03

 

A casual employee who worked all his time in overtime hours has had his workers compensation reduced.

The casual worker had no ordinary hours of work and therefore could not receive workers compensation based on an ordinary time rate of pay, the Supreme Court of Tasmania has found.

The decision overturned an order of the Workers Rehabilitation and Compensation Tribunal which had set the worker’s weekly compensation payments at a rate determined on the basis of 'ordinary time rate of pay' for the hours worked. The entitlement which was calculated using this rate in fact exceeded the award rate for a permanent full-time employee. The employer appealed.

This decision has implications for casual employees employed under awards which do not define an ‘ordinary time rate of pay’.

The worker was a casual employee, who had only worked for a period of three weeks for the employer before her injury in October 2001. She was employed under the terms of the Restaurant Keepers Award. In her first week of employment she worked for one day, in her second she worked for 49.25 hours and in her third week she worked 15.25 hours.

The issue was whether the weekly compensation payments should be set based on her average weekly earnings over the preceding 12 months or whether they should be based on an ‘ordinary time rate of pay’. The Tribunal had chosen the latter approach, calculating an ‘ordinary time rate of pay’ which it based on the second week of her employment. It did so because it appeared ‘…this in general was a week in which her hours conformed to the shifts that had been agreed ... at the commencement of her employment’.

Justice Slicer of the Supreme Court held that the Tribunal had erred. In fact the worker had no ‘normal weekly earnings’ capable of calculation. The Restaurant Keepers Award contains four different wage rates depending on whether the work is performed on weekdays, weekends and on public holidays. Her ordinary time rate of pay therefore varied depending on the days worked.

The Supreme Court made an order to reduce the worker’s weekly compensation payments.

See: Thirroul Investments Pty Ltd v Foley [2003] TASSC 89 (24 September 2003).

 

 

 

Post details