P In Person v SOUTH AUSTRALIA POLICE [2025] SASCA 92

On Appeal from SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL (HIS HONOUR DEPUTY PRESIDENT JUDGE CALLIGEROS, HER HONOUR DEPUTY PRESIDENT JUDGE KELLY AND HIS HONOUR DEPUTY PRESIDENT JUDGE ROSSI) [2025] SAET 9 Applicant: P In Person Respondent: SOUTH AUSTRALIA POLICE Counsel: MS E FERGUSON WITH MR B GARNAUT - Solicitor: GILCHRIST CONNELL Hearing Date/s: 07/08/2025 File No/s: CIV-25-002698 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. P v SOUTH AUSTRALIA POLICE [2025] SASCA 92 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Stanley) 21 August 2025 WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - CALCULATION OF WEEKLY EARNINGS - OVERTIME, ALLOWANCES AND OTHER PAYMENTS Application for permission to appeal on a question of law against a decision of the Full Bench of the South Australian Employment Tribunal. The applicant was a police officer. He suffered a work-related injury on 8 October 2004 and made a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA). The Workers Compensation Tribunal ordered that he was entitled to weekly payments and interest in arrears. Following the enactment of the Return to Work Act 2014 (SA) (‘RTW Act’), the applicant received income support payments under the transitional provisions of the Act. These payments ceased in June 2017. Since July 2017, the applicant has received weekly payments under compensation scheme pursuant to Schedule 4 of the Award. In December 2017, the applicant made a claim for non-payment or underpayment of wages. Auxiliary Deputy President Judge Clayton held that ‘rates of remuneration’ in cl S4.85 of the Award, under which the applicant’s compensation payments were made, included all allowances and other entitlements payable to the officer from time to time were it not for the eligible injury. The respondent appealed to the Full Bench. The Full Bench allowed the appeal, holding, in effect, that increases to the rates of remuneration applicable to the classification held by the officer referred to an officer’s salary level prescribed by an award but not to discrete and separate increases in -- 1 of 13 -- allowances or other entitlements. The applicant has applied for permission to appeal against this decision. The applicant is self-represented. The 12 grounds of appeal raised by the applicant complain primarily about the reasoning of the Full Bench. They do not expressly raise a question of law. Nonetheless, the grounds raise a single question of law for determination on the appeal, being: 1. whether the phrase in cl S4.85, ‘increases in the rates of remuneration applicable to the classification held by the officer’ refers only to an officer’s salary level prescribed by an award or enterprise agreement, and not to discrete and separate increases in allowances or other entitlements? Held (by the Court), dismissing the appeal: 1. Economic adjustments pursuant to cl S4.85 are based on applicable increases to the respondent’s salary level and not any allowances to which he may have been entitled. South Australian Employment Tribunal Act 2014 (SA) s 68; Workers Rehabilitation and Compensation Act 1986 (SA) ss 4, 37, 38, 39; Return to Work Act 2014 (SA) ss 5, 45, 46, 47; Police Act 1998 (SA) ss 20, 21, 22, 23, referred to. Kancheff v Chief Executive, Attorney-General’s Department [2025] SAET 10; Kimber v Chief Executive, Department for Treasury and Finance [2021] SASCA 133; Smith v Chief Executive, Attorney-General’s Department [2024] SASCA 107; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Hall v Carney & Ors [2025] SASCA 23; Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72; A v South Australia Police [2020] SAET 204; CE, DTF v A [2021] SAET 217; South Australia (SAAS) v Dohnt (2021) 138 SASR 270; Chenoweth v TransAdelaide [2001] SAWCT 29; Royal Adelaide Hospital v Khammash [2001] SAWCT 66, considered. -- 2 of 13 -- P v SOUTH AUSTRALIA POLICE [2025] SASCA 92 Court of Appeal – Civil: Livesey P, Bleby and Stanley JJA 1 THE COURT: This is an application for permission to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal, pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA). On its face, it raises a question of law concerning the proper construction of cl S4.85 of Schedule 4 of the Police Officers Award (‘the Award’). Clauses S4.84 and S4.85 provide: S4.84 If an eligible officer is incapacitated for work or appears likely to be incapacitated for work for more than one year, the employer must, during each year of incapacity, review the income compensation for the purpose of making an adjustment to the amount of the income compensation under this Part. S4.85 Subject to S4.87, the Notional Weekly Earnings of an eligible officer who is entitled to income compensation shall be adjusted to reflect any increases in the rates of remuneration applicable to the classification held by the officer (or, where relevant, any successor classification) immediately prior to the particular injury occurring and prescribed by an award or enterprise agreement. 2 The putative question of law concerns the scope of the phrase, ‘rates of remuneration’ in cl S4.85. Background 3 The applicant joined the police force in October 1985. He worked as a police prosecutor from 1994 until he suffered a work-related injury on 8 October 2004. He made a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) (‘WRC Act’). In 2013, the Workers Compensation Tribunal (per McCusker DPJ) made orders, by consent, to the effect that the applicant was entitled to weekly payments and interest on arrears.1 The consent orders fixed the applicant’s Average Weekly Earnings (‘AWE’) at $1,216.83. They recorded the relevant date of injury as 8 October 2004. They prescribed applicable adjustments to the applicant’s Notional Weekly Earnings (‘NWE’), such that from 9 January 2014, 80 per cent of the NWE was $1,435.98. 4 Following the enactment of the Return to Work Act 2014 (SA) (‘RTW Act’), the applicant received income support payments pursuant to the transitional provisions of that Act. Those payments ceased on 28 June 2017. Since 6 July 2017, the applicant has received weekly payments and medical expenses pursuant to the additional compensation scheme provided for by Schedule 4 of the Award. 5 On 11 December 2017, the applicant made a claim for non-payment or underpayment of wages. He claimed $3,427 for wages and $175.96 for allowances. 1 P v The State of South Australia (South Australia Police) [2013] SAWCT 11. -- 3 of 13 -- [2025] SASCA 92 The Court 2 6 In the course of preparation for trial, SAPOL applied for the determination of two preliminary issues, being: 1. What were the applicant’s NWE as at the time of his transition onto payments under Schedule 4 of the Award, within the meaning of cll S4.19 and S4.45 of Schedule 4? 2. How are the economic adjustments to the applicant’s NWE applied pursuant to cl S4.85 of Schedule 4? 7 The parties reached agreement on the first question, to the effect that at the time the applicant commenced receiving benefits under Schedule 4, his NWE were $1,741.88. As to the second question, SAPOL submitted that the term ‘rates of remuneration’ in cl S4.85 meant only the salary level applicable to the classification held by the officer under the relevant industrial instrument as in force from time to time. Auxiliary Deputy President Judge Clayton rejected that contention and held that the term ‘rates of remuneration’ included all allowances and other entitlements payable to the officer from time to time were it not for the eligible injury. Relevantly, this included allowances attached to ‘Brevet Sergeant’, Restructuring and Prosecution. 8 SAPOL appealed to the Full Bench of the Tribunal. The Notice of Appeal contained a single ground, although that ground was particularised by several complaints of error in reasoning. It complained, in substance: 1. The Learned Auxiliary Deputy President erred in failing to conclude that, properly construed, S4.85 of the [Award] only requires that economic adjustments take place reflecting applicable increases to an eligible officer’s salary level and does not extend to any increases in allowances or other entitlements the eligible officer may have been entitled to from time to time were it not for their incapacity. 9 The Full Bench allowed the appeal. Deputy President Judge Calligeros, with whom Kelly and Rossi DPJJ agreed, held:2 In my view, cls S4.84 and S4.85 are intended to adopt the last rate of NWE determined under the RTW Act and to apply increases that take place after income compensation is payable under Schedule 4. Schedule 4 applies after eligible employees cease to be entitled to benefits under the RTW Act. In that context, it is not congruent for the Award to go beyond the determinations of AWE and NWE made under the compensation Acts. 10 It followed that the Full Bench held that the phrase in cl S4.85, ‘increases in the rates of remuneration applicable to the classification held by the officer’, referred to an officer’s salary level prescribed by an award or enterprise agreement, but not to discrete and separate increases in allowances or other entitlements. 11 The Full Bench also held, having regard to cl S4.84, that a review under cll S4.84 and S4.85 is limited to the time after additional compensation commences being received under the Award, rather than all increases in the relevant rates of 2 SAPOL v P [2025] SAET 9 at [73]. -- 4 of 13 -- [2025] SASCA 92 The Court 3 remuneration since the previous setting of NWE. This was consistent with the Full Bench’s conclusion in Kancheff v Chief Executive, Attorney-General’s Department,3 which the Full Bench heard immediately before this matter. This Court heard the appeal from the Full Bench’s decision in Kancheff immediately before hearing the present appeal. The Full Bench considered that the matter arising in Kancheff also fell to be determined in this matter. However, whatever the position before the Full Bench, the Notice of Appeal in this Court does not raise that issue. The question of law arising on the appeal 12 The applicant is self-represented. His Notice of Appeal contains 12 grounds of appeal but does not articulate any question of law. The grounds of appeal read, in full, as follows: 1. Judges erred in finding the full increases in allowances were not included in original orders under the WRC act. The original orders under S.39 review included all allowances in full when they increased under E.B. (paragraph 54 of judgment) 2. Judges erred in finding Sections S4.85 of the Police officer’s Award did not allow for increase in allowances to be calculated the same was as under the Workers Rehabilitation act original orders of Judge McCusker. 3. Judges erred in finding of facts surrounding the worker’s circumstances. 4. Judges erred by showing bias in not confirming all allowances were included as they occurred under the EB under original orders of His Honour Judge McCusker as they were supplied method of calculation to confirm this. 5. Judges erred in finding case law quoted by Employer’s representative had application to the workers circumstances. 6. Judges erred in finding case law quoted in his reasons by His Honour D.P. Calligeros did not allow for calculation of all increases in the EB in Average weekly earnings. 7. The Judges erred in finding allowing increases to the allowances under the EB would be doubly compensating the worker. 8. The Judges erred at paragraph 43 in finding the drafters of the E.A. adopted the more restrictive interpretation of the term “rates of remuneration”. 9. The Judges erred at paragraph 44, in finding “there is no machinery in the Award that allows AWE or [NWE] to be determined independently of a compensation Act”. 10. The Judges erred at paragraph 52 in finding “P’s approach requires multiple and separate adjustments to made for each of the three elements that comprise his AWE. 11. The Judges erred at paragraph 53 in their definition of “rates of remuneration” in clause S4.85. 3 [2025] SAET 10. -- 5 of 13 -- [2025] SASCA 92 The Court 4 12. The Judges erred at paragraph 62 in their finding that “McCusker DPJ did not separately increase the base increment and the two allowances. His honour applied the increase to the base increment to the whole of the prior rate of AWE/NWE.” This is opposite of how the rate was calculated under the WRC act and all allowance increases when they occurred in the E.B were taken into account to derive the new AWE/NWE. 13 The order sought on the appeal is: All allowances increase under E.B. should form part in calculating the notional weekly earnings as per original order of Judge McCusker. 14 This Court has, on a number of occasions, considered whether grounds of appeal complaining about the application of an industrial award to particular circumstances raise a question or questions of law.4 It is not necessary to repeat the discussions in those cases about what is, and is not, capable of constituting a question of law.5 15 It is immediately apparent that not every ground of appeal in the applicant’s Notice of Appeal raises a question of law. That is obviously the case, for example, with respect to Ground 3. Most of grounds raise complaints about the reasoning of the Full Bench in concluding that the phrase in cl S4.85, ‘increases in the rates of remuneration applicable to the classification held by the officer’ refer only to an officer’s salary level prescribed by an award or enterprise agreement, and not to discrete and separate increases in allowances or other entitlements. 16 The only ground that appears to raise any other question of law is Ground 4, which makes a complaint of bias. However, the applicant explained at the hearing that this complaint related to the fairness of the approach by the Full Bench in the course of its reasoning. He submitted that the Full Bench had not undertaken certain calculations of entitlement from the perspective that he urged, and thereby did not consider his case properly. He confirmed that this complaint was effectively an element of his ultimate complaint, which was about the construction that the Full Bench gave to cl S4.85. 17 It follows, and the applicant accepted, that the appeal properly only raises one question of law. That question of law can be expressed as follows: Whether the phrase in cl S4.85, ‘increases in the rates of remuneration applicable to the classification held by the officer’ refers only to an officer’s salary level prescribed by an award or enterprise agreement, and not to discrete and separate increases in allowances or other entitlements? 4 See, e.g., Kimber v Chief Executive, Department for Treasury and Finance [2021] SASCA 133; Smith v Chief Executive, Attorney-General’s Department [2024] SASCA 107. 5 As to which, see generally, Vetter v Lake Macquarie City Council (2001) 202 CLR 439. -- 6 of 13 -- [2025] SASCA 92 The Court 5 Requirement of leave 18 The respondent opposed a grant of leave to appeal. As counsel observed, there are three interrelated questions relevant to whether to grant leave to appeal:6 1. whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; 2. whether the decision raises an issue of principle or general importance; and 3. whether allowing the decision to stand would work a substantial injustice to the applicant. 19 The respondent submitted that leave to appeal should be refused because the applicant had not articulated any ground of appeal which raised a question of law, there was no merit in the complaints that could be said to raise questions of law and that there was no substantial injustice to the applicant in any event. 20 As to the first of these submissions, we are satisfied that the Notice of Appeal raises the question of law identified above. 21 As to the third of these submissions, the respondent submitted that the economic adjustments under cl S4.85 were applied to the applicant’s NWE, which included allowances, by reference to the rate of increase in base wages over time. That is to say, an increase was nonetheless applied to an amount that represented the allowances. Without performing calculations that show the difference of including, or not including, changes to allowances, it is difficult to know what the potential difference would be. In any event, however, the question of the basis on which economic adjustments are to be made is fundamental to the calculation of entitlements. For that reason, the question of leave depends heavily on the strength of the challenge on the appeal. That being a matter of construction of the award, it is necessary to consider the merits of the appeal proper. The appeal 22 The principles underlying the interpretation of industrial awards remain as stated in Qube Ports Pty Ltd v Maritime Union of Australia:7 There are well developed principles concerning the construction of industrial awards and agreements, which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts. The principles were reviewed recently by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 at [29]-[41]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the Court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and, in doing so, avoid a 6 Hall v Carney & Ors [2025] SASCA 23 at [11]. 7 Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 at [64]-[65] (White J, Mortimer and Bromwich JJ agreeing). -- 7 of 13 -- [2025] SASCA 92 The Court 6 narrow or pedantic approach. In particular, the Court takes account of the circumstance that the drafters of the agreement were likely of a “practical bent of mind” and likely to have been concerned with expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties. 23 Accepting that a narrow or pedantic approach is to be avoided, where the relevant industry is, as with the police, a public sector occupation the subject of significant statutory regulation, the words of the award must necessarily be approached against the background of that statutory regulation. The statutory framework is a significant ‘context of the relevant industry’. To the extent that the text of an award adopts the language of relevant establishing and regulating legislation, it may be expected that the parties deployed that language in the full knowledge of that contextual meaning. 24 In addition, consideration should be given to whether it is any longer historically accurate to approach questions of construction on the basis that the authors of awards and industrial agreements are of a ‘practical bent of mind’, expressing their intentions in the context of an industrial relations environment that results in a different construction than would otherwise be the case in some different context. Today, it is appropriate to recognise that awards and agreements are mostly drafted by university-educated workplace relations specialists. 25 Economic adjustment of NWE pursuant to cl S4.85 is required ‘to reflect any increases in the rates of remuneration applicable to the classification held by the officer’. This directs attention to the rates of remuneration applicable to the classification that the officer holds. Clause 1.4 of the Award defines the term ‘Classification’: 1.4.4 Classification means the rank either normally or usually ascribed to a particular position. 26 The Police Act 1998 (SA) addresses, to an extent, the ranks within SAPOL. Section 20 provides that the Commissioner may appoint as many commanders, superintendents, inspectors and other officers of police as the Commissioner thinks necessary. Section 21 provides for the appointment of sergeants and constables. Section 22 then provides: 22—Further division of ranks The ranks of officers and other members of SA Police may be further divided or consolidated under the regulations. 27 Section 23 addresses the appointment of persons ‘of or above the rank of senior constable’. 28 Regulation 4 of the Police Regulations 2014 (SA) sets out the ranks in SAPOL, pursuant to the power granted in s 22: -- 8 of 13 -- [2025] SASCA 92 The Court 7 4—Ranks The ranks of officers and other members of SA Police in order of seniority (starting with the highest rank) are as follows: (a) Commissioner; (b) Deputy Commissioner; (c) Assistant Commissioner; (d) Commander; (e) Chief Superintendent; (f) Superintendent; (g) Chief Inspector; (h) Inspector; (i) Senior Sergeant; (j) Sergeant; (k) Senior Constable First Class; (l) Senior Constable; (m) Constable. 29 It is apparent that the designation ‘Brevet Sergeant’ is not a rank within the meaning of the Act or Regulations. Rather, it appears to be a designation given to officers of the rank of Senior Constable First Class that reflects some degree of experience and at least entitles the officer to certain advantages under the SAPOL Enterprise Agreement. Thus, the SAPOL Enterprise Agreement 2021 sets out the increments of remuneration for ‘Senior Constable/Senior Constable First Class/Brevet Sergeant’. It provides a single scale of increments for ‘Senior Constable First Class’ and ‘Brevet Sergeant’. It also carries the notation: Only members at the rank of SC1C and Brevet Sergeants at the rank of SC1C will be eligible to progress to Increment 7 SC1C (or Increment 6 SC1C from 1 October 2012). 30 The Enterprise Agreement also provides that an allowance is payable in respect of ‘Brevet Sergeant’ and ‘Prosecution’, as well as in respect of various other designations and functions. 31 The designation ‘Brevet Sergeant’ may have further implications not identified on the appeal. In any event, for present purposes, it is clear that ‘Brevet Sergeant’ and ‘Prosecution’ are not designations of rank. They are designations of other matters (in the case of ‘Prosecution’, a particular function) that attract allowances or further payments under the Enterprise Agreement. It is apparent -- 9 of 13 -- [2025] SASCA 92 The Court 8 from the Enterprise Agreement that ‘Brevet Sergeant’ is a designation available to officers of the rank of Senior Constable First Class. This was the rank of the applicant at the date of injury. 32 As the respondent submitted, it follows that the use of the word, ‘classification’ in cl S4.85, which is defined to mean ‘rank’, is a strong textual indicator that the words, ‘increases to rates of remuneration’ mean ‘increases to the salary applicable to that rank’. The allowances that are applicable by reference to various other designations of position or function are not applicable to a particular rank, but rather on account of the relevant designation. 33 Clause S4.1 of Schedule 4 supports the proposition that the economic adjustment clauses were intended to replicate the benefits of economic adjustment that had been available under the WRC Act. This clause provides: S4.1 This schedule provides benefits to eligible officers with eligible injuries that would have been applicable under the WR&C Act if they cease to be entitled to similar benefits under the RTW Act. 34 Clause S4.43 then commences: S4.43 The employer must pay weekly payments of income compensation in respect of incapacity for work (whether partial or total) arising out of an eligible injury in accordance with the following principles. … 35 Clause S4.45 provides: S4.45 Weekly payments must be paid at the rate of 80% of the eligible officer’s Notional Weekly Earnings or, if the eligible officer has actual earnings, 80% of the difference between actual earnings and the eligible officer’s Notional Weekly Earnings. 36 The Award does not contain any mechanism for calculating NWE, which are defined in cl S4.19: S4.19 Notional Weekly Earnings means the eligible officer’s Notional Weekly Earnings under the relevant compensation Act as adjusted pursuant to Part 9 of this Schedule. 37 The definitions of AWE and NWE in the WRC Act and the RTW Act are relevantly the same, but for the different section numbers. AWE is calculated, subject to various qualifications, by the amount the worker earned during the period of 12 months preceding the relevant date in relevant employment.8 NWE is then defined, relevantly, in each Act as follows: notional weekly earnings in relation to a worker means— (a) the worker's average weekly earnings; or 8 WRC Act s 4; RTW Act s 5. -- 10 of 13 -- [2025] SASCA 92 The Court 9 (b) where an adjustment has been made under this Act to take account of changes in levels of earnings, the value of money or remuneration … or other relevant factors (or 1 or more of these)—the worker's average weekly earnings as so adjusted …; 38 The RTW Act adds the qualifier at the end of this definition, ‘but not so as to exceed in any case twice State average weekly earnings’. 39 Clearly enough, the initial calculation of a police officer’s NWE will incorporate amounts received on account of allowances ascribed to the designations in the Enterprise Agreement, including those of ‘Brevet Sergeant’ and ‘Prosecution’. 40 Manifestly, the purpose of Schedule 4 is to reinstate benefits that were available under the WRC Act but lost under the RTW Act. 41 It is useful to note, at this stage, the observation by Gilchrist DPJ in A v South Australia Police,9 which the Full Bench referred to in this matter, about the nature of the compensation scheme provided for by Schedule 4:10 I think it is clear that the purpose of S4.45 of Sch 4 is to maintain the same level of income support as was in place immediately before weekly payments ceased. I think that the section picks up the words of the [WRC Act] and the RTW Act, not for the purpose of creating a new entitlement and a new calculation of the entitlement, but for the purpose of stating that the basis of the entitlement under the Award is the same as it was under those Acts. If there was an issue about the calculation of the weekly entitlement the time and place to ventilate that issue was in connection with the determination of the entitlement under the [WRC Act] or the RTW Act. I think the Award contemplates a seamless transition as opposed to a potentially convoluted assessment of the incapacities flowing from multiple injuries and the legal consequences of that assessment. The Award simply applies the rate determined under the [WRC Act] or the RTW Act. 42 The Full Bench dismissed the worker’s appeal from this decision, noting that there was no facility under the Award to determine a worker’s NWE.11 43 This reasoning as to the basis of compensation under the Schedule when transitioning from weekly payments pursuant to the relevant compensation Act is persuasive. Having said that, it only goes so far. That is, it eschews any recalculation of the basis of compensation payments once weekly payments have ceased. The question in the present case relates to the following step, being how future economic adjustments to that transferred base are to be calculated. 44 The respondent submitted that having particular regard to cl S4.1, cll S4.84 and 4.85 recreated the effect of ss 39(1) and 39(2)(a)(ii) of the WRC Act, respectively. These sub-sections provided: 39—Economic adjustments to weekly payments 9 [2020] SAET 204. 10 A v South Australia Police [2020] SAET 204 at [40]. 11 CE, DTF v A [2021] SAET 217 at [28]-[29] (Calligeros DPJ); [95] (Rossi DPJ). -- 11 of 13 -- [2025] SASCA 92 The Court 10 (1) Where a worker to whom weekly payments are payable is incapacitated for work or appears likely to be incapacitated for work for more than one year, the Corporation shall, during the course of each year of incapacity, review the weekly payments for the purpose of making an adjustment to the amount of those payments under this section. … (2) An adjustment under this section— (a) must be based on— (i) … ; or (ii) if the worker applies, in a designated manner and a designated form, for the adjustment to be made on the basis of changes in rates of remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time of the occurrence of the disability—changes in those rates of remuneration; … 45 In South Australia (SAAS) v Dohnt,12 the Full Court of the Supreme Court considered the effect of s 39 (and ss 37 and 38) of the WRC Act in the context of construing the replacement provisions in the RTW Act, being s 47 (and ss 45 and 46) respectively. Justice Livesey, with whom Kourakis CJ and Parker J agreed, observed that following the Clayton Review, amendments in 2008 required AWE to be calculated by reference to the average earned during the twelve months preceding the disability or injury. Section 39 of the WRC Act was then expressed in terms of adjustments to weekly payments. Rather than providing a means to recalculate weekly payments, it simply provided for increases or decreases in the amount of compensation payments payable to reflect rises and falls in wages.13 46 Justice Livesey then referred to Royal Adelaide Hospital v Khammash,14 in which a hospital orderly had his AWE calculated by reference to a remuneration package that included shift penalties. The work was outsourced and the orderlies who remained with the employer lost their shift work. The Full Bench held that s 39 did not allow the employer to reduce the worker’s weekly payments, as it only permitted ‘adjustment to the amount of compensation being paid to an incapacitated worker to reflect rises or falls in wages’.15 47 As the respondent submitted, Dohnt confirmed that adjustments to NWE under s 39 of the WRC Act did not extend to recalculating the integers of NWE. Rather, adjustments were based on rises or falls in wages once AWE, and therefore NWE, had been calculated. This was not necessarily to a worker’s disadvantage, 12 (2021) 138 SASR 270. 13 South Australia (SAAS) v Dohnt (2021) 138 SASR 270 at [72]; referring to Chenoweth v TransAdelaide [2001] SAWCT 29 at [21]-[23]. 14 [2001] SAWCT 66. 15 Royal Adelaide Hospital v Khammash [2001] SAWCT 66 at [11]; cited in South Australia (SAAS) v Dohnt (2021) 138 SASR 270 at [74]. -- 12 of 13 -- [2025] SASCA 92 The Court 11 as Khammash shows. It did, however, provide a relatively simple method of economic adjustment. The Court in Dohnt confirmed what has long been the understanding of s 39. Thus in Chenoweth v TransAdelaide,16 to which the Full Bench referred,17 a majority of the Workers Compensation Tribunal held:18 It has always been a basic tenet of workers compensation legislation that once pre-injury earnings have been determined, that determination “was res judicata and remained immutable thereafter…”: Coalcliff Colleries v Campbell (1964) 81 WN (Pt 2) NSW 318 at 320, Sugermann J (see also Coalcliff Colleries v Campbell (1965) 112 CLR 349). S 39 is couched in terms of an adjustment to weekly payments. It is not a means by which to recalculate the assessment of weekly notional earnings. It simply provides for increases or decreases in the amount of compensation payments payable to an incapacitated worker to reflect rises and falls in wages, as the case may be. 48 We accept that cl S4.85 is drafted in such a way as to continue the methodology imposed by s 39. The text of the clause, considered earlier, is entirely consistent with this approach. Further, there is no apparent purposive reason why the mechanism under the Award would depart form the approach provided for by s 39. The applicable allowances contribute to the calculation of the base NWE. That base is amenable to increase in line with salary level adjustments. The Award does not require each of the components comprising NWE to be re-calculated. That would require a recalculation of NWE annually, reviewing each constituent element of NWE to allow for any change in the particular allowance. Rather, as the Full Bench correctly observed, ‘[t]his is an instance where certainty is preferable to flexibility’.19 Conclusion 49 Economic adjustments pursuant to cl S4.85 are based on applicable increases to the respondent’s salary level and not any allowances to which he may have been entitled. 50 While this conclusion is straightforward on an orthodox analysis of the Award, the applicant’s appeal looked to reinstate the success the applicant enjoyed at first instance. The question of law raised on the appeal warranted consideration by this Court. For that reason, we grant leave to appeal. However, the appeal must be dismissed. 16 [2001] SAWCT 29. 17 [2025] SAET 9 at [67]. 18 Chenoweth v TransAdelaide [2001] SAWCT 29 at [22]-[23]. 19 [2025] SAET 9 at [88]. -- 13 of 13 --