UNITED FIREFIGHTERS UNION OF SOUTH AUSTRALIA INC v CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT & ANOR [2026] SASCA 79

On Appeal from SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL (HIS HONOUR DEPUTY PRESIDENT JUDGE CALLIGEROS, HER HONOUR DEPUTY PRESIDENT JUDGE KELLY, HIS HONOUR DEPUTY PRESIDENT JUDGE ROSSI) [2025] SAET 10 Appellant: UNITED FIREFIGHTERS UNION OF SOUTH AUSTRALIA INC Counsel: MR S BLEWETT WITH MR P RUSSELL - Solicitor: UNITED FIREFIGHTERS UNION OF SOUTH AUSTRALIA INC First Respondent: CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT Counsel: MR B GARNAUT WITH MS E FERGUSON - Solicitor: CROWN SOLICITOR (SA) Second Respondent: MR STEPHEN KANCHEFF (EXCUSED) - Solicitor: WEARING & BLAIRS Hearing Date/s: 07/08/2025 File No/s: CIV-25-002730 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. UNITED FIREFIGHTERS UNION OF SOUTH AUSTRALIA INC v CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT & ANOR [2026] SASCA 79 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Stanley) 16 July 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW - GENERALLY Appeal from a decision of the Full Bench of the South Australian Employment Tribunal. This appeal arose in the context of a firefighter, Mr Kancheff, sustaining an injury at work. He received weekly payments under the Return to Work Act 2014 (SA) (RTW Act) until 5 July 2022. Before those payments ceased, he made a claim for additional compensation under the Schedule to the Firefighting Industry Employees (South Australian Metropolitan Fire Service) Award 2007 (the Award), which provides additional compensation to eligible employees after statutory workers’ compensation benefits under the RTW Act cease. Following the commencement of the South Australian Metropolitan Fire Service Enterprise Agreement 2022, Mr Kancheff elected to have his Notional Weekly Earnings (NWE) in May and/or June 2023 reviewed and adjusted to reflect increases in the rates of remuneration prescribed by that agreement, namely increases of 2.5% from 1 January 2021, 2.5% from 1 January 2022, and 3% from 1 January 2023. A question of law was referred to the Full Bench concerning the proper construction of cl S1.85 of the Schedule to the Award. The critical question was whether increases in rates of remuneration -- 1 of 43 -- operative after the date of Mr Kancheff’s injury, and after his NWE had been set under the RTW Act, but before he commenced receiving income compensation payments under the Schedule, were to be included in adjustments to his NWE under cl S1.85. The Full Bench answered the question of law as follows: On the agreed facts, the increases in rates of remuneration that apply from 1 January 2022 and 1 January 2023 are required to be taken into account in reviewing [Mr Kancheff’s] notional weekly earnings in May and/or June 2023 under cls S1.84 and S1.85 of the Award. The Full Bench’s answer had the effect of excluding the 2.5% increase in rates of remuneration applicable from 1 January 2021. The critical question on the appeal to the Court remained whether that increase was required to be taken into account in fixing the rate of remuneration pursuant to the Award from 1 January 2021. Held, by the Court, granting leave to appeal, allowing the appeal, and answering the question of law as follows: On the agreed facts, the increases in rates of remuneration that apply from 1 January 2021, 1 January 2022 and 1 January 2023 are required to be taken into account in reviewing Mr Kancheff’s notional weekly earnings in May and/or June 2023 under clauses S1.84 and S1.85 of the Award. Fair Work Act 1994 (SA) s 8(2); Return to Work Act 2014 (SA) ss 4.1, 5, 19A, 45, 47; Workers Rehabilitation and Compensation Act 1986 (SA) (repealed) ss 3, 4, 35, 37-39; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA), referred to. A v South Australia Police [2020] SAET 204; Chief Executive, Department of Treasury and Finance v A, A v Chief Executive, Department of Treasury and Finance [2021] SAET 217; City of Wanneroo v Holmes (1989) 30 IR 362; Francese v Corporation of the City of Adelaide (1989) 51 SASR 522; George A. Bond & Co. Ltd (in liq.) v McKenzie [1929] AR (NSW) 498; Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10; Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133; Kucks v CSR Limited (1996) 66 IR 182; P v South Australia Police [2025] SASCA 92; Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72; South Australia Police v P [2025] SAET 9, discussed. Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298; Realestate.com.au Pty Ltd v Hardingham and Ors [2022] HCA 39; Redman v Return to Work Corporation (SA) (2021) 139 SASR 131; State of South Australia (in Right of the Department for Health and Ageing (SA Ambulance Service)) v Dohnt & Ors (2021) 138 SASR 270; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Transport Workers’ Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54, considered. -- 2 of 43 -- UNITED FIREFIGHTERS UNION OF SOUTH AUSTRALIA INC v CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT & ANOR [2026] SASCA 79 Court of Appeal – Civil: Livesey P, Bleby & Stanley JJA LIVESEY P: Introduction 1 This appeal concerns a dispute about the operation of a clause in a schedule to an industrial award. 2 By cl 29 of the Firefighting Industry Employees (South Australian Metropolitan Fire Service) Award 2007, Schedule 1 operates as part of the award. Within Schedule 1 is cl S1.85, the clause the subject of this dispute. It provides for adjustments to income compensation to reflect “any increases in the rates of remuneration … prescribed by an award or enterprise agreement”. 3 The purpose of Schedule 1 is to provide “heightened compensatory protection” for workers subject to the award.1 As cl S1.1 of Schedule 1 explains, it provides benefits to workers that would have been available under the Workers Rehabilitation and Compensation Act 1986 (SA) (repealed) (the 1986 Act) after they cease to be entitled to similar benefits under the Return to Work Act 2014 (SA) (the 2014 Act).2 4 The question of law referred for decision to the Full Bench of the South Australian Employment Tribunal is whether cl S1.85 permits wage increases commencing in January 2021, January 2022 and January 2023 under the South Australian Metropolitan Fire Service Enterprise Agreement 2022 (the 2022 Enterprise Agreement) to be made available to workers such as Mr Stephen Kancheff, the worker in the matter the subject of this appeal. The 2022 Enterprise Agreement came into operation from 22 December 2022. 5 The essential difference between the parties is whether it matters that some of these increases commenced before Mr Kancheff could make a claim under the Schedule, at a time when he was still entitled to compensation under the 2014 Act. 6 Relying upon earlier authority,3 the Full Bench held that cl S1.85 of the Schedule only permitted eligible workers with eligible injuries to take prospective wage increases, being those which commenced during the period of any 1 Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133, [50] (Livesey P, Bleby and David JJA). 2 P v South Australia Police [2025] SASCA 92, [40] (Livesey P, Bleby and Stanley JJA). 3 A v South Australia Police [2020] SAET 204, [40] (Gilchrist DPJ) and Chief Executive, Department of Treasury and Finance v A [2021] SAET 217, [96] (Rossi DPJ). -- 3 of 43 -- [2026] SASCA 79 Livesey P 2 entitlement under the Schedule, only after they were no longer entitled to benefits under the 2014 Act.4 The determination of this appeal 7 There is an obvious attraction to the proposition that entitlements under the Schedule are only available during the period in which a worker is benefited by the Schedule, and not during an earlier period when a worker may still be receiving entitlements under the 2014 Act. This may be seen as part of a seamless transition from benefits under the 2014 Act to benefits under the Schedule. 8 Nonetheless, that proposition must yield to the ordinary meaning of the terms of the Schedule, having regard to the industrial context in which it was intended to operate as part of an industrial award.5 9 In these circumstances cl S1.85 must be applied according to its terms, with the result that the worker is entitled to the benefit of “any increases” in wages, including those dating back to January 2021, before the worker could make any claim under the Schedule. 10 The appeal should be allowed and the question of law answered in the terms proposed by Stanley JA. Relevant background 11 The worker, Mr Kancheff, is employed by the South Australian Metropolitan Fire Service. He sustained an eligible injury in the course of his employment as a firefighter with the MFS on 15 May 2020. His claim for compensation was accepted on 24 July 2020, and he received compensation by way of weekly payments under the 2014 Act until 5 July 2022. 12 Before his entitlements under the 2014 Act came to an end, Mr Kancheff made a claim for additional compensation under the Schedule. Through the South Australian Fire and Emergency Services Commission (Safecom), the respondent determined that Mr Kancheff’s injury was an eligible injury under the Schedule, but there was no entitlement because he was earning more than 80 per cent of his “notional weekly earnings”. Mr Kancheff challenged that determination. 13 The 2022 Enterprise Agreement then came into operation in December 2022, providing for retrospective wage increases commencing each year on or after 1 January 2021. 4 Kancheff v Chief Executive, Attorney-General’s Department [2025] SAET 10, [54]-[55] (Calligeros DPJ, with whom Kelly and Rossi DPJJ agreed). 5 Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, [65] (White J, with whom Mortimer and Bromwich JJ agreed); Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133, [45] (Livesey P, Bleby and David JJA); P v South Australia Police [2025] SASCA 92, [22]-[24] (Livesey P, Bleby and Stanley JJA). -- 4 of 43 -- [2026] SASCA 79 Livesey P 3 14 After Mr Kancheff elected to have his income compensation payment entitlements reviewed by reference to the 2022 Enterprise Agreement rather than the wage price index, Safecom undertook a review under cl S1.84 of the Schedule. It adjusted Mr Kancheff’s notional weekly earnings with effect from 23 January 2023. The adjustment was made on the basis that Mr Kancheff was only entitled to the increases which operated from 1 January 2022 and 1 January 2023. 15 Safecom determined that Mr Kancheff was not entitled to the increase which operated from 1 January 2021. 16 As was acknowledged on appeal, that determination is not consistent with the ruling made by the Full Bench. If Mr Kancheff were not able to take the benefit of the entitlements available under the Schedule until only after the date he ceased receiving benefits under the 2014 Act, that date was 5 July 2022. That would exclude any entitlement to the wage increase available from 1 January 2022 as well as the wage increase available from 1 January 2021. Construing cl S1.85 of the Schedule 17 For the purposes of these reasons, it is not necessary to set out all of the clauses of the Schedule which were the subject of argument.6 The key provisions are as follows: PART 1 – INTRODUCTION S1.1 This schedule provides benefits to eligible employees 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. … PART 9 – ADJUSTMENTS TO INCOME COMPENSATION Economic adjustments to the level of income compensation S1.84 If an eligible employee 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. Quantum of economic adjustments – industrial instruments S1.85 Subject to S1.87, the Notional Weekly Earnings of an eligible employee 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 employee (or, where relevant, any successor classification) immediately prior to the particular injury occurring and prescribed by an award or enterprise agreement. 6 Those clauses, the terms of the 1986 Act and the 2014 Act, and a complete statement of the facts and findings may be found in the reasons of Stanley JA. -- 5 of 43 -- [2026] SASCA 79 Livesey P 4 … Election for economic adjustment based on Wage Price Index not industrial instrument S1.87 If an eligible employee elects in writing to have their Notional Weekly Earnings adjusted in accordance with the Wage Price Index for total hourly rates of pay excluding bonuses for South Australia, the employer must adjust the eligible employee’s Notional Weekly Earnings accordingly. Timing of economic increase based on industrial instrument S1.88 An economic increase reflecting changes to remuneration in an award or enterprise agreement operates from the date of the employer’s decision on the review, back-dated to the date of the relevant changes in rates of remuneration. 18 As the Full Bench recognised, there is a correlation between some of the clauses in the Schedule and provisions in the 2014 Act concerning employer reviews.7 Indeed, there is a correlation between the various provisions concerning reviews in the 2014 Act and the 1986 Act.8 19 As the text of cl S1.85 shows, the starting point is a worker’s “notional weekly earnings”. Whether under the 1986 Act or the 2014 Act, that is defined to mean the worker’s “average weekly earnings” or the worker’s average weekly earnings as adjusted, including as adjusted to take account of changes in levels of earnings. 20 Of course, a key difference between the 1986 Act and the 2014 Act is that the entitlement to weekly payments under the 2014 Act generally comes to an end after two years, unless a worker is designated a “seriously injured worker”.9 Clause S1.1 is intended to overcome limitations such as these by providing benefits that would have been available under the 1986 Act after the entitlement to similar benefits under the 2014 Act comes to an end. 21 Clauses S1.84 and S1.85 are intended to address the economic adjustments that may be made in connection with the annual reviews undertaken by the employer where eligible employees are incapacitated, or appear likely to be so, for more than one year. As occurred in this case, under that review the employer must offer the worker the right to elect in writing whether to have notional weekly earnings adjusted in accordance with an award or enterprise agreement (cl S1.85) 7 Kancheff v Chief Executive, Attorney-General’s Department [2025] SAET 10, [43] (Calligeros DPJ, with whom Kelly and Rossi DPJJ agreed). 8 South Australia (in Right of the Department for Health and Ageing) (SA Ambulance Service)) v Dohnt (2021) 138 SASR 270 (Dohnt), [103] (Livesey J, with whom Kourakis CJ and Parker J agreed); South Australia Police v P [2025] SAET 9, [44] (Calligeros DPJ, with whom Kelly and Rossi DPJJ agreed). 9 Dohnt (2021) 138 SASR 270, [92]-[96] (Livesey J, with whom Kourakis CJ and Parker J agreed); Redman v Return to Work Corporation (SA) (2021) 139 SASR 131, [82]-[86] (Livesey JA, with whom Bleby JA agreed). -- 6 of 43 -- [2026] SASCA 79 Livesey P 5 or in accordance with the wage price index for total hourly rates of pay, excluding bonuses, for South Australia (cl S1.87). 22 Mr Kancheff elected to have his entitlement to income compensation reviewed to reflect increases in rates of remuneration prescribed by an award or enterprise agreement. That brought into consideration the terms of the 2022 Enterprise Agreement and the operation of cl S1.85. 23 For present purposes, it is to the words of cl S1.85 that primary attention must be directed. The elements of that clause are: (1) The weekly earnings of an eligible employee who is entitled to income compensation shall be adjusted; (2) The adjustment must reflect any increases in rates of remuneration applicable to the classification held by the employee immediately prior to injury (or, where relevant, any successive classification); and (3) The increases in the rates of remuneration are those prescribed by an award or enterprise agreement (where cl S1.87 does not apply). 24 As can be seen, under cl S1.85 the adjustments to be made in connection with the employer’s review during each year of incapacity must “reflect any increases in the rates of remuneration … prescribed by an award or enterprise agreement”. 25 The ordinary meaning of these words is clear. They are not confined to increases which occur only after a worker ceases to be entitled to benefits under the 2014 Act. The phrase “any increases” is confined only by an employee’s classification before injury, and by that which is prescribed by an award or enterprise agreement. 26 Whilst giving effect to these words may in some cases produce a “potentially convoluted assessment”, particularly in cases of multiple injuries,10 the attraction of a “seamless transition” from entitlements under the 2014 Act to entitlements under the Schedule conflicts with the plain terms of the Schedule. The industrial context in which the award operates 27 In addition, it is necessary to acknowledge the industrial context in which award provisions such as these are intended to operate. That requires that this Court take account of the practical operation of an award, for it is necessary to construe the terms of the award having regard to the industrial relations environment in which it was intended to operate.11 10 Cf A v South Australia Police [2020] SAET 204, [40] (Gilchrist DPJ). 11 Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, [65] (White J, with whom Mortimer and Bromwich JJ agreed). -- 7 of 43 -- [2026] SASCA 79 Livesey P 6 28 In particular, after Mr Kancheff ceased to be entitled to benefits under the 2014 Act, and he became entitled to benefits under the Schedule (subject to any contention about his notional weekly earnings), the 2022 Enterprise Agreement came into operation. As is common, the 2022 Enterprise Agreement provided for retrospective wage increases. That is, some of these increases were awarded by reference to past employment:12 It has long been the practice of industrial tribunals to make awards and other industrial agreements which impose a prospective duty or obligation on a person (usually an employer) by reference to past transactions or events. The most common example is an award which requires back-payment of wages for work which had already been performed prior to the making of the award. 29 That is to say, the employer’s prospective obligation will commonly operate in respect of past events. So, in December 2022 the 2022 Enterprise Agreement conferred on workers the benefit of retrospective increases commencing from 1 January 2021 and 1 January 2022, as well as prospectively from 1 January 2023. Whilst the obligation to make payment of these increases only arose from December 2022, the amount of the payment had to reflect the increases awarded retrospectively, requiring “back-payment”. 30 This feature of the industrial relations context in which the award was intended to operate requires that effect be given to the ordinary meaning of cl S1.85, and tends against the considerations which found favour with the Full Bench.13 In particular, whilst notional weekly earnings may initially be set under the 2014 Act, they are reviewed and may be adjusted under Schedule 1 provisions similar to those which applied under s 39 of the 1986 Act (or s 47 of the 2014 Act in the case of seriously injured workers). 31 These reviews must take account of increases in rates of wages made under awards or enterprise agreements. Those reviews and any adjustments operate on the notional weekly earnings amount last set or adjusted. 14 And, as has been seen, remuneration increases under awards or enterprise agreements are commonly conferred retrospectively. 32 This context suggests that it is unlikely that the award was intended to deny workers the benefit of retrospective wage increases such as those which were conferred in this case. 12 Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298, [148] (Besanko, Jagot and Bromberg JJ). 13 Cf Kancheff v Chief Executive, Attorney-General’s Department [2025] SAET 10, [52]-[55] (Calligeros DPJ, with whom Kelly and Rossi DPJJ agreed), [71]-[73] (Rossi DPJ). 14 See, for example, s 39(2) of the 1986 Act; Kancheff v Chief Executive, Attorney-General’s Department [2025] SAET 10, [14]-[16] (Calligeros DPJ, with whom Kelly and Rossi DPJJ agreed). -- 8 of 43 -- [2026] SASCA 79 Livesey P 7 The timing of the economic increase – the operation of cl S1.88 33 Indeed, the ordinary meaning of cl S1.85, having regard to its proper context, is reinforced by the terms of cl S1.88. 34 Whilst cl S1.88 could have been better expressed, its meaning is clear enough. By that clause an economic increase reflecting changes to remuneration under an award or enterprise agreement operates from the date of the employer’s decision on the review, but it is backdated to the date of any relevant changes in rates of remuneration. 35 Clause S1.88 assumes that relevant changes in remuneration may commence before the review decision. Its evident purpose is to ensure that, once the review is completed and the adjustment made, effect is given to those earlier changes from the date upon which they took effect under the relevant industrial instrument. 36 That sits comfortably with a construction of cl S1.85 that requires that notional weekly earnings be adjusted to reflect all increases in remuneration prescribed by the relevant award or enterprise agreement which are applicable to the worker’s classification, including those with retrospective operation. It is less readily reconciled with a construction that excludes from consideration increases otherwise falling within the language of cl S1.85 only because they took effect before benefits under the 2014 Act came to an end. 37 Accordingly, cl S1.88 provides support for the conclusion that, once an employee becomes entitled to compensation under the Schedule, the adjustment required by cl S1.85 must reflect any increases in the rates of remuneration prescribed by the relevant industrial instrument. That will include increases which operate from a date before the review decision and to which cl S1.88 gives effect. This reflects the common industrial experience that wage and other increases under awards or enterprise agreements may be conferred retrospectively. 38 This approach gives a coherent operation to both provisions within Schedule 1 and avoids reading into cl S1.85 a temporal limitation which is not to be found in its text. Conclusion 39 In these circumstances, the ordinary meaning of the Schedule, together with the industrial relations context in which wage increases are commonly conferred, combine to suggest that the worker in this case was entitled to the benefit of the wage increases specified under the 2022 Enterprise Agreement. 40 It did not matter that two of those wage increases were effectively backdated to a time when the worker might still be receiving benefits under the 2014 Act. 41 The appeal should be allowed and orders made in the terms outlined by Stanley JA. -- 9 of 43 -- [2026] SASCA 79 Stanley JA 8 BLEBY JA: 42 I would allow the appeal and answer the question of law as proposed by Stanley JA. I agree with the reasons of Stanley JA and the additional observations of Livesey P. STANLEY JA: Introduction 43 This is an appeal from a decision of the Full Bench of the South Australian Employment Tribunal (the Employment Tribunal) answering a question of law referred to the Full Bench by a single member of the Employment Tribunal. 44 The appellant is the United Firefighters Union of South Australia. The respondent to the appeal is the Chief Executive, Attorney-General’s Department. Mr Stephen Kancheff, the claimant in the matter the subject of this appeal, is an employee of the South Australian Metropolitan Firefighting Service (MFS).15 45 The question of law concerns the proper construction of clause S1.85 of Schedule 1 (the Schedule) of the Firefighting Industry Employees (South Australian Metropolitan Fire Service) Award 2007 (the Award). 46 The question of law referred to the Full Bench was: 1. … On the proper construction of clause S1.85 of Schedule 1 of the Firefighting Industry Employees (South Australian Metropolitan Fire Service) Award 2007 (the Award), and based on [Mr Kancheff] electing to have his rate of notional weekly earnings adjusted to reflect any increases in the rates of remuneration prescribed by the South Australian Metropolitan Fire Service Enterprise Agreement 2022 (the EA), which of the following increases in the rates of remuneration was the respondent required to take into account in reviewing [Mr Kancheff’s] notional weekly earnings in May and/or June 2023: 1.1 2.5% per annum payable from the first full pay period commencing on or after 1 January 2021; and/or 1.2 2.5% per annum payable from the first full pay period commencing on or after 1 January 2022; and/or 1.3 3% per annum payable from the first full pay period commencing on or after 1 January 2023. 47 The Full Bench answered the question of law as follows:16 15 On 27 March 2025 the second respondent in this appeal, Mr Stephen Kancheff, was granted leave to be excused from further participation in these proceedings. 16 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [59]. -- 10 of 43 -- [2026] SASCA 79 Stanley JA 9 On the agreed facts, the increases in rates of remuneration that apply from 1 January 2022 and 1 January 2023 are required to be taken into account in reviewing [Mr Kancheff’s] notional weekly earnings in May and/or June 2023 under cls S1.84 and S1.85 of the Award. 48 That answer had the effect of excluding the 2.5% per annum increase in the rate of remuneration payable on or after 1 January 2021. But the appellant submits the respondent should have been required to take that increase into account in reviewing Mr Kancheff’s Notional Weekly Earnings (NWE) in May and/or June 2023. The issue 49 The appeal turns on the proper construction of an economic adjustments entitlement contained in clause S1.85 of the Schedule. The Schedule provides a scheme for additional compensation for certain work-related injuries. “Injury” in this context means an injury within the meaning of s 4(1) of the Return to Work Act 2014 (SA) (RTW Act). 50 The issue on appeal results from what the appellant submits is an attempt, under the Schedule, to reverse changes to the statutory scheme of workers compensation pursuant to the RTW Act which, amongst other things, terminated access to a mechanism which ensured that weekly payments of compensation of workers incapacitated by the occurrence of a particular injury kept pace with changes in the rates of remuneration otherwise payable to workers. 51 The Full Bench concluded, as the respondent submitted, that the determination of economic adjustments made under the additional compensation scheme should not have regard to a time when an eligible employee received benefits under the RTW Act. The Full Bench held that, properly construed, clause S1.85 of the Schedule, which provides for NWE to be adjusted “to reflect any increases in the rates of remuneration”, only refers to increases in the rates of remuneration that occur after an eligible employee’s entitlements to weekly payments under the RTW Act cease to be payable. 52 The critical question on this appeal is whether any increases in rates of remuneration which were operative after the date of Mr Kancheff’s injury, and after his NWE were set under the RTW Act, but before he commenced receiving income compensation payments under the Schedule, were to be included in adjustments of his NWE under clause S1.85 of the Schedule. 53 The appellant contends that, on its proper construction, clause S1.85 requires that the relevant adjustment to NWE must reflect all of the increases in the relevant rates of remuneration occurring since the previous setting of NWE, which in Mr Kancheff’s case was when Average Weekly Earnings (AWE)17 were set under the RTW Act. 17 Workers Rehabilitation and Compensation Act 1986 (SA) s 3. -- 11 of 43 -- [2026] SASCA 79 Stanley JA 10 54 The respondent maintains that the correct construction of clause S1.85 considered by reference to its text, context and purpose is, as the Full Bench held, that the only increases in rates of remuneration to be reflected in the relevant adjustment to NWE are those which occurred after weekly payments ceased being payable to Mr Kancheff under the RTW Act. 55 For the reasons that follow, the answer to the question of law should be: On the agreed facts, the increases in rates of remuneration that apply from 1 January 2021, 1 January 2022 and 1 January 2023 are required to be taken into account in reviewing Mr Kancheff’s notional weekly earnings in May and/or June 2023 under clauses S1.84 and S1.85 of the Schedule. Background 56 The question of law involves the operation of the RTW Act, its predecessor, the Workers Rehabilitation and Compensation Act 1986 (SA) (WRC Act) and the Schedule. The question of law arises from the entitlement some public sector employees have to additional compensation payments under the Schedule once statutory workers’ compensation payments under the RTW Act cease to be payable after 104 weeks.18 57 As I have said, Mr Kancheff is an employee of the MFS. The employees of the MFS are covered by the Schedule. The Schedule provides for compensation and other benefits to be provided to an employee who has suffered an eligible injury. As I have said, “injury” finds its meaning under the RTW Act, or its predecessor, the WRC Act. An injury is eligible, pursuant to Part 3 of the Schedule, where, among other things, the injury occurs in circumstances of danger and where the employee is temporarily or permanently incapacitated for work. An eligible employee with an eligible injury may not become entitled to income compensation and other benefits until sometime after he or she ceases to be entitled to the relevant compensation or benefits under the RTW Act. 58 The appellant is a union which represents employees of the MFS. The appellant and other unions who represent other public sector employees undertook a successful campaign in effect to reverse changes to the statutory scheme of workers’ compensation for some public sector employees injured in circumstances of danger. 59 The appellant contends the Schedule was a response to changes enacted in the RTW Act to reduce entitlements accessed by injured workers. One of the benefits removed by the introduction of the RTW Act was access to a mechanism that ensured weekly payments of compensation kept pace with changes in the rates of remuneration otherwise payable to injured workers. 18 Subject to two exceptions, the RTW Act provides weekly payments for up to 104 weeks (two-years). One exception is when the employee has been assessed under the RTW Act as a seriously injured employee, and the second exception is when workers have surgery after weekly payments have ceased. -- 12 of 43 -- [2026] SASCA 79 Stanley JA 11 60 It follows that the purpose of the amendments to the Award, including the insertion of the Schedule was, as the appellant submits, to restore benefits to workers so that they would continue to receive the entitlements that would have been provided had the WRC Act continued in operation. This was effected not by amendment to the RTW Act but by amendment to the Award. This objective is enunciated in clause S1.1 of the Schedule which provides that the Schedule confers benefits on eligible employees with eligible injuries that would have applied under the WRC Act if they cease to be entitled to similar benefits under the RTW Act. 61 The above-mentioned mechanism is reflected in clause S1.85 of the Schedule. The appellant contends that the construction of clause S1.85 adopted by the Full Bench erodes part of the benefit that clause is intended to confer, in that the construction fails to take into account increases in rates of remuneration between the time of injury and the time of receiving entitlements under the Schedule. The subject matter of the proceedings which resulted in the referral of the question of law to the Full Bench, and this appeal from that decision, is broadly as follows. Mr Kancheff 62 Mr Kancheff suffered an injury in the course of his employment as a firefighter with the MFS on 15 May 2020. He made a claim for compensation under the RTW Act for his injury. That claim was accepted on 24 July 2020. He received compensation in the form of weekly payments under the RTW Act until 5 July 2022. Before those payments ceased under the RTW Act, he made a claim for additional compensation under the Schedule. 63 On 10 November 2022, the respondent determined that Mr Kancheff’s injury was an eligible injury under the Schedule, but that he had no entitlement to income compensation on the ground that, in the view of the South Australian Fire and Emergency Services Commission (SAFECOM), he was earning over 80% of his NWE. On that day, Mr Kancheff lodged an application in respect of that determination. 64 On 22 December 2022, the South Australian Metropolitan Fire Service Enterprise Agreement 2022 (2022 EA) came into operation. 65 On 28 March 2023 SAFECOM wrote to Mr Kancheff advising that it would undertake a review of his income compensation payments pursuant to the Schedule and adjust them either by reference to “Award or Enterprise Agreement increases or by reference to the Wage Price Index” (WPI)19, at Mr Kancheff’s election. 66 On 29 March 2023, Mr Kancheff confirmed his election to receive an economic adjustment based on the wage increases payable under the 2022 EA. 19 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [16]. -- 13 of 43 -- [2026] SASCA 79 Stanley JA 12 The 2022 EA provides wage increases applicable to Mr Kancheff’s classification commencing on the following dates and at the following rates: • 2.5% per annum from the first full pay period commencing on or after 1 January 2021; • 2.5% per annum from the first full pay period commencing on or after 1 January 2022; and • 3% per annum from the first full pay period commencing on or after 1 January 2023. 67 Ultimately, the dispute between the parties concerned the increase in Mr Kancheff’s rate of remuneration. Specifically, at issue was the 2.5% per annum increase he sought from 1 January 2021. 68 In or around May and June 2023 SAFECOM undertook the review of Mr Kancheff’s income compensation payments pursuant to the Schedule and adjusted them pursuant to the 2022 EA, which constituted or included a review for the purposes of clause S1.84 of the Schedule. 69 In around July 2023 the respondent made an adjustment to Mr Kancheff’s NWE, effective from 23 January 2023. The adjustment was calculated on the basis that it did not include the 2.5% per annum increase in wages from 1 January 2021, but did include the increases of 2.5% per annum from 1 January 2022, and 3% per annum from 1 January 2023. 70 Mr Kancheff subsequently filed a monetary claim for underpayment20 by reason of the failure to pay him the 2.5% per annum increase from 1 January 2021. While the appellant’s claim was made after the WRC Act ceased to operate, the Schedule adopts the reviews of weekly payments and of NWE's as set out in the WRC Act. 71 As I have noted, the question of construction before the Full Bench was whether increases in the rates of remuneration which were operative after the date of Mr Kancheff’s work injury and after the NWE were set under the RTW Act, but before he commenced receiving income compensation payments under the Schedule, were to be included in adjustments of NWE under clause S1.85 of the Schedule. 72 The leading judgment of the Full Bench was that of Deputy President Judge Calligeros, with whom Kelly and Rossi DPJJ agreed. Rossi DPJ provided additional reasons. Calligeros DPJ helpfully set out the applicable provisions of the WRC Act, the RTW Act and the Schedule, which must be considered in answering the question of law. 20 Pursuant to s 19A of the Return to Work Act 2014 (SA). -- 14 of 43 -- [2026] SASCA 79 Stanley JA 13 The relevant provisions of the WRC Act (repealed) 73 Section 4 of the WRC Act described how to calculate AWE. The rate of AWE determined the quantum of weekly payments payable to workers under the WRC Act. AWE were defined in s 3 of the WRC Act as: average weekly earnings, in relation to a worker, means the worker's average weekly earnings determined in accordance with section 4; 74 Under the WRC Act, and now under the RTW Act, a worker with an incapacity for work that results from an injury that arises from employment receives 100% of AWE, less any earnings from employment in the first year of incapacity. In the second year of incapacity, weekly payments are limited to 80% of NWE. I will return to this. 75 NWE were defined in s 3 of the WRC Act as: notional weekly earnings in relation to a worker means— (a) the worker's average weekly earnings; or (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 (including under section 37) or other relevant factors (or 1 or more of these)—the worker's average weekly earnings as so adjusted; 76 Although NWE were defined to include AWE, the term NWE was commonly used to describe AWE after at least one annual review under s 39 of the WRC Act had taken place. Reviews of AWE and NWE under ss 37, 38 and 39 of the WRC Act would take effect from each anniversary of the first date of incapacity. 77 Section 37(1) of the WRC Act had a relatively narrow operation: (1) The Corporation may, on its own initiative or at the request of the worker, review the calculation of the average weekly earnings of a worker (and therefore the notional weekly earnings of a worker) for the purpose of making an adjustment due to— (a) a change in a component of the worker's remuneration used to determine average weekly earnings (including a component constituted by a non-cash benefit); or (b) a change in the equipment or facilities provided or made available to the worker (if relevant to average weekly earnings). 78 After s 37 of the WRC Act was amended in 2008,21 the subject of the provision was AWE and NWE, not weekly payments. 79 A review under s 38 of the WRC Act was a review of “the amount of the weekly payments made to a worker who has suffered a compensable injury”. A s 38 review was primarily directed to changes in the extent of an incapacity for 21 By the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA). -- 15 of 43 -- [2026] SASCA 79 Stanley JA 14 work and consequent changes to the amount of weekly payments made as the example in s 38(4) illustrated: For example, if the Corporation finds on the review that there has been a change in the extent of the worker's incapacity with a consequent change in the amount the worker is earning or could earn in suitable employment, the Corporation must adjust the weekly payments to reflect the change in entitlement. 80 A s 38 review could extend to making an alteration to the rate of AWE or NWE. Weekly payments were reduced or increased if there was an increase or decrease in a worker’s capacity for work. The same was true of ss 35A, 35B and 35C of the WRC Act. Those provisions were referred to as work capacity review provisions and applied from 2008 in cases where the period of incapacity for work exceeded 130 weeks.22 In such a case, if a worker had a retained capacity for work and was not maximising earnings from employment, weekly payments could be discontinued. Clauses S1.49 to S1.57 of the Schedule are entitled “Work Capacity Reviews” and import the operation of ss 35A to 35C of the WRC Act into the Schedule. 81 When the WRC Act ceased to operate, s 39 provided: (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. (1a) Before the Corporation begins a review under this section, the Corporation must give the worker notice, in a designated form— (a) informing the worker of the proposed review; and (b) inviting the worker to make written representations to the Corporation on the subject of the review within a reasonable time specified in the notice. (2) An adjustment under this section— (a) must be based on— (i) changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's injury arose; 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 injury—changes in those rates of remuneration; and … 22 Inserted by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA). -- 16 of 43 -- [2026] SASCA 79 Stanley JA 15 82 While a s 39 review under the WRC Act was expressed to be a review of weekly payments, weekly payments derive from AWE. In Francese v Corporation of the City of Adelaide,23 King CJ described AWE as “the measure of the compensation which is payable”. AWE were determined when a claim for weekly payments was accepted. Adjustments to AWE or NWE affected the amount of weekly payments paid to workers. With the exception of how overtime was treated, once AWE were set, they could only be adjusted through s 37 or s 39 of the WRC Act. As I have mentioned, under the WRC Act, in the first year of incapacity a worker with no capacity to perform work would receive weekly payments equivalent to AWE. Thereafter, weekly payments equivalent to 80% of NWE would be paid to a worker with no capacity for work, while a worker with some capacity for work would receive 80% of the difference between NWE and their actual earnings or designated weekly earnings. The relevant provisions of the Return to Work Act 83 The RTW Act definition of AWE is virtually identical to the WRC Act definition of that term. The only difference between the two definitions is the section referred to in each Act.24 84 The RTW Act definition of NWE contains more section references than the WRC Act definition did, but the definitions are not materially different for present purposes. The RTW Act defines NWE as: notional weekly earnings in relation to a worker means— (a) the worker's average weekly earnings; or (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 (including under section 45, 46 or 60) or other relevant factors (or 1 or more of these)—the worker's average weekly earnings as so adjusted but not so as to exceed in any case twice State average weekly earnings; 85 Subject to two exceptions, the RTW Act provides weekly payments for up to 104 weeks; being two-years. 86 Section 47 of the RTW Act is the analogue of s 39 of the WRC Act, however under the RTW Act economic adjustments to weekly payments are only made for seriously injured workers. Parliament may have dispensed with the reviews pursuant to s 39 of the WRC Act for most workers given that weekly payments are only payable for two-years in most cases. As I have said, weekly payments reduce to 80% of NWE in the second year of incapacity under the RTW Act, as they did under the WRC Act. 23 (1989) 51 SASR 522 at 526. 24 Workers Rehabilitation and Compensation Act 1986 (SA) s 4; and Return to Work Act 2014 (SA) s 5. -- 17 of 43 -- [2026] SASCA 79 Stanley JA 16 87 Section 45 of the RTW Act is the analogue of s 37 of the WRC Act. The two provisions are materially the same. There is no equivalent of s 45(9) of the RTW Act in the WRC Act, but that provision is not relevant to this appeal. 88 The RTW Act does not have an equivalent to ss 35A, 35B and 35C of the WRC Act. Again, presumably it was thought there was no need for those provisions given weekly payments end in most cases after two-years under the RTW Act. The relevant provisions of the Award and the Schedule 89 Clause 29 of the Award provides: The employer must pay and/or provide benefits pursuant to Schedule 1 of this Award. 90 The Schedule has the following relevant clauses: PART 1 – INTRODUCTION S1.1 This schedule provides benefits to eligible employees 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. … PART 2 – DEFINITIONS IN THIS SCHEDULE S1.7 Average Weekly Earnings means Average Weekly Earnings under S4(1) of the RTW Act; S1.8 Compensation Act means either or both or all of the Workers Rehabilitation and Compensation Act 1986, the Return to Work Act 2014, and any successor legislation to the Return to Work Act 2014. Insofar as references in this Schedule to “compensation Act” refer to the Return to Work Act 2014, those references are not limited to the Return to Work Act 2014 as at 1 July 2017. … S1.19 Notional Weekly Earnings means the eligible employee’s Notional Weekly Earnings under the relevant compensation Act as adjusted pursuant to Part 9 of this Schedule. … PART 5 – INCOME COMPENSATION ENTITLEMENTS & LUMP SUMS S1.43 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. … Work capacity review S1.44 An eligible employee’s entitlement to income compensation in respect of a particular eligible injury does not arise without an entitling assessment pursuant -- 18 of 43 -- [2026] SASCA 79 Stanley JA 17 to S1.49 (work capacity review) and ceases if there is a disentitling assessment pursuant to S1.51. Income compensation – quantum S1.45 Weekly payments must be paid at the rate of 80% of the eligible employee’s Notional Weekly Earnings or, if the eligible employee has actual earnings, 80% of the difference between actual earnings and the eligible employee’s Notional Weekly Earnings. Income Compensation – duration S1.46 An eligible employee’s entitlement to income compensation ceases when the eligible employee reached retiring age. … Work Capacity Reviews S1.49 An eligible employee’s entitlement to receive income compensation does not commence unless the eligible employee is assessed in relation to the cumulative effect of one or more eligible injuries (an entitling assessment) by the employer as: S1.49.1 having no current work capacity; and S1.49.2 likely to continue indefinitely to have no current work capacity; or S1.49.3 being in employment but because of the injury or injuries is likely to continue indefinitely to be incapable of undertaking further or additional employment or work that would increase the eligible employee’s current weekly earnings. … Work capacity reviews and commencing or recommencing income compensation S1.53 If an eligible employee who is not receiving income compensation under this Schedule or a compensation Act claims income compensation the employer is not obliged to pay income compensation under this Schedule until an entitling assessment is made. In those circumstances, if an entitling assessment is made the eligible employee is entitled to arrears and interest for all periods when they are entitled to income compensation. First work capacity review; timing S1.54 A work capacity review may be performed before or after an eligible employee has exhausted their entitlement to weekly payments under a compensation Act. S1.55 An eligible employee who, immediately before the end of the second designated period defined in s 39 of the RTW Act, was in receipt of weekly payments under the RTW Act is entitled to receive income compensation pursuant to this Schedule at the same rate unless and until a work capacity review is conducted. S1.56 If S1.55 applies and the outcome of the work capacity review is: -- 19 of 43 -- [2026] SASCA 79 Stanley JA 18 S1.56.1 an entitling assessment, the employer must conduct reviews in accordance with Part 9 of this Schedule and adjust the eligible employee’s income compensation accordingly; S1.56.2 a disentitling assessment, S1.52 and Part 8 of this Schedule apply. … PART 9 - ADJUSTMENTS TO INCOME COMPENSATION Economic adjustments to the level of income compensation S1.84 If an eligible employee 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. Quantum of economic adjustments – industrial instruments S1.85 Subject to S1.87, the Notional Weekly Earnings of an eligible employee 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 employee (or, where relevant, any successor classification) immediately prior to the particular injury occurring and prescribed by an award or enterprise agreement. Notice requirements before economic adjustment required S1.86 At least 28 days before deciding the quantum of an economic adjustment pursuant to this clause, the employer must give the eligible employee written notice of the following. S1.86.1 The increase in the rate of remuneration the employer says applies pursuant to S1.85 and how the proposed economic adjustment has been calculated by applying that increase to the eligible employee’s pre-existing Notional Weekly Earnings. S1.86.2 The increase in the rate of remuneration the employer says would be applicable if an economic adjustment was made in accordance with the Wage Price Index for total hourly rates of pay excluding bonuses for South Australia, and how an economic adjustment would be calculated by applying that increase to the eligible employee’s pre-existing Notional Weekly Earnings, and the eligible employee’s right to elect in writing to receive an economic adjustment on that basis rather than in accordance with S1.85. S1.86.3 The eligible employee’s right to make written representations to the employer on the review within a reasonable time specified in the notice. Election for economic adjustment based on Wage Price Index not industrial instrument S1.87 If an eligible employee elects in writing to have their Notional Weekly Earnings adjusted in accordance with the Wage Price Index for total hourly rates of pay excluding bonuses for South Australia, the employer must adjust the eligible employee’s Notional Weekly Earnings accordingly. -- 20 of 43 -- [2026] SASCA 79 Stanley JA 19 Timing of economic increase based on industrial instrument S1.88 An economic increase reflecting changes to remuneration in an award or enterprise agreement operates from the date of the employer’s decision on the review, back-dated to the date of the relevant changes in rates of remuneration. Reasons for judgment of the Full Bench 91 The Full Bench construed clause S1.85 to the effect that the only increases in rates of remuneration to be reflected in the adjustments to NWE are those occurring after weekly payments cease to be payable under the RTW Act.25 92 The Full Bench considered there is a strong correlation between the income compensation review provisions in the Schedule and the corresponding RTW Act provisions.26 The correlation was acknowledged by Mr Kancheff, and was the subject of comment by this Court in State of South Australia (in Right of the Department for Health and Ageing (SA Ambulance Service)) v Dohnt & Ors.27 In South Australia Police v P,28 Calligeros DPJ said:29 In Dohnt the Full Court of the Supreme Court concluded that ss 45, 46 and 47 of the RTW Act replicate ss 37, 38 and 39 of the WRC Act. The Court held that no change of meaning or effect was intended by the new provisions despite s 45(1) of the RTW Act using the expression “a change in a component of the worker’s remuneration” and not the expression “changes in rates of remuneration” in s 39 of the WRC Act. The Court held that s 45 has a confined operation. 93 The Full Bench accepted, as Mr Kancheff submitted, that clause S1.85 does not expressly confine making economic adjustments under the Schedule to a time when it also provides income compensation; and that an adjustment is only made under clause S1.85 if there is an increase in rates of remuneration. Further, the Full Bench found, as Mr Kancheff also submitted, that clause S1.1 can be read as authorising economic adjustments as if the WRC Act continued to operate. Despite that, the Full Bench ultimately found that clauses S1.1 and S1.85 were not intended to operate entirely as Mr Kancheff contended. 94 The construction adopted by the Full Bench rests on two foundations. First, that a purpose of the Schedule was that it have a forward focused operation, or that it operate in a forward facing way only, and that adjusting NWE by reference to events that occurred prior to the cessation of entitlements under the RTW Act is inconsistent with this forward focused approach.30 Second, that the Schedule adopts as the rate of NWE the rate that last applied under the RTW Act, such that adjusting the NWE by reference to increases in rates of remuneration that occurred 25 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [42], [47]-[53]. 26 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 10 at [43]. 27 (2021) 138 SASR 270. 28 [2025] SAET 9. 29 South Australia Police v P [2025] SAET 9 at [44]; citing State of South Australia (in Right of the Department for Health and Ageing (SA Ambulance Service)) v Dohnt & Ors (2021) 138 SASR 270 at [103]. 30 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [48], [52]-[53]. -- 21 of 43 -- [2026] SASCA 79 Stanley JA 20 while payments were being made under the RTW Act conflicts with that forward focused approach.31 95 The Full Bench reasoned that the Schedule uses the definition of AWE found in the RTW Act, and the definition of NWE in “the relevant compensation Act as adjusted pursuant to Part 9 of [the] Schedule”. Because Mr Kancheff received benefits under the RTW Act prior to his receipt of benefits under the Schedule, the relevant compensation Act is the RTW Act. The Full Bench held that it follows that Mr Kancheff’s rate of NWE for the purpose of the Schedule is the rate of NWE that last applied under the RTW Act. That rate did not include the economic adjustment sought by Mr Kancheff. 96 The Full Bench considered the decision of the Employment Tribunal in A v South Australia Police (A).32 In A the worker claimed separate weekly payments for different work injuries under Schedule 4 of the Police Officer’s Award. In holding that the result the worker claimed was beyond the ambit of Schedule 4, Gilchrist DPJ said:33 I think it 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 WR&C 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 entitlement under the WR&C 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 WR&C Act or the RTW Act. I therefore favour the proposed construction of the Award put forward by the Department. 97 In this matter,34 Rossi DPJ came to the same answer, noting that an important element of Mr Kancheff’s case related to the construction of clause S1.85 under a similar Award provision to that in A.35 98 Rossi DPJ considered that clause S1.85 is to be construed by reference to its text, in context with other clauses in the Schedule, and having regard to relevant policy considerations. His Honour also noted that the Award, including the Schedule, is an industrial instrument which is to be construed in accordance with the principles applicable to the construction of such instruments. His Honour considered that the objective common intention of the parties is to be ascertained where they would have had a practical bent of mind. His Honour found the individual and commercial realities associated with an extension of statutory workers compensation benefits through an award are to be taken into account. The 31 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [49]-[53], [56]. 32 [2020] SAET 204. 33 A v South Australia Police [2020] SAET 204 at [40]. 34 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10. 35 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [44]. -- 22 of 43 -- [2026] SASCA 79 Stanley JA 21 references to “… shall be adjusted” and “to reflect any increases…” were found to be indicative of a review to determine the rate of remuneration to be paid into the future.36 99 Rossi DPJ determined the definition of NWE in clause S1.20 indicates that the NWE rate is set during the period of entitlement to weekly payments under the relevant workers compensation Act and maintained or reviewed in accordance with the provisions of that legislation until there is an adjustment made in accordance with clause S1.85. His Honour also considered that the text of clause S1.1 indicates that the mechanism of adjustment made to NWE only becomes operative if and when the entitlement to weekly payments ceases under the RTW Act. 100 Rossi DPJ noted that the Schedule only applies from 104 weeks, being two-years, after the first day of the entitlement to claim weekly payments under a compensation Act. His Honour also noted that while both the WRC Act had, and the RTW Act has, provisions addressing the criteria for determining the NWE rate, there are no criteria for calculating an NWE rate in the Schedule. That omission was said to support the construction adopted by the Full Bench. 101 Rossi DPJ noted that he had observed in Chief Executive, Department of Treasury and Finance v A, A v Chief Executive, Department of Treasury and Finance37 that there is a material difference between a worker being entitled to a rate of benefit under an award by way of a weekly rate higher than what was agreed to be the weekly rate paid under statute, and the continuation of benefits that would have otherwise applied under the WRC Act. His Honour concluded that while the construction of clause S1.85 of the Schedule advanced by Mr Kancheff before the Full Bench may be considered consistent with the text in isolation, it is not consistent with the text in context and having regard to the purpose of the Schedule. Principles of construction 102 The relevant principles regarding the interpretation of industrial instruments are well-known. They are conveniently summarised in Qube Ports v Maritime Union of Australia38 as follows:39 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 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 36 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [62]-[71]. 37 [2021] SAET 217 at [96]. 38 [2018] FCAFC 72. 39 Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 at [65], cited with approval by the Court of Appeal in Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133 at [45]. While under s 8(2) of the Fair Work Act 1994, where there is evidence of a common intention of the parties as to the meaning of a provision, the common intention must be given effect, no party sought to rely upon any evidence of common intention other than that which is expressed in the Award. -- 23 of 43 -- [2026] SASCA 79 Stanley JA 22 the context of the relevant history and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties. 103 While industrial instruments are not contracts, and therefore principles appropriate to construction of commercial contracts are not necessarily applicable, as the above reasons imply, those principles can still be relevant to the construction of an industrial instrument.40 As with commercial contracts, the search is for what a reasonable person would have understood the terms to mean. This may involve consideration both of the text and surrounding circumstances.41 104 The reference to the drafters being of a practical bent of mind derives from the frequently cited reasons of Madgwick J in Kucks v CSR Limited (Kucks),42 in which his Honour noted that it was trite that narrow or pedantic approaches to the interpretation of industrial instruments are misplaced, bearing in mind that the drafters were likely of a practical bent of mind. However, his Honour continued:43 But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning… 105 A similar caution was expressed by French J, as his Honour then was, in City of Wanneroo v Holmes (City of Wanneroo):44 Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties. 106 Finally, clauses in industrial instruments should not be interpreted in a vacuum divorced from the other provisions of the instrument. In George A. Bond & Co. Ltd (in liq.) v McKenzie45, cited by French J in City of Wanneroo, Street J explained:46 … I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intentions of the parties to be gathered from the whole award. 107 In identifying the principles applicable to the contemporary construction of industrial instruments it is necessary to bear in mind that these days they are 40 Transport Workers’ Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54 at [34]-[35]. 41 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]. 42 (1996) 66 IR 182. 43 Kucks v CSR Limited (1996) 66 IR 182 at 184. 44 (1989) 30 IR 362 at 380. 45 [1929] AR (NSW) 498. 46 George A Bond & Co Ltd (in liq) v Mckenzie [1929] AR (NSW) 498 at 503, applied in City of Wannerroo v Holmes (1989) 30 IR 362 at 378. -- 24 of 43 -- [2026] SASCA 79 Stanley JA 23 unlikely to have been drafted by persons, conjured by Madgwick J, with a practical bent of mind. That phrase reflects an historical reality which has largely ceased to exist insofar as it suggests that industrial instruments are the product of drafting undertaken by persons actually working in the industry the subject of the instrument. 108 Instead, the contemporary industrial environment is that those instruments are mostly drafted either by university educated trade union officials, human resources managers, or consultants. They are professional workplace relations practitioners. Even by 1996 when Kucks was decided, the historical position was evolving. Thirty years later it has changed considerably. This changed reality was recently recognised by this Court in P v South Australia Police.47 109 Nonetheless, the principles of construction remain the objective identification of the meaning the parties to the instrument intended, avoiding a narrow or pedantic approach. The constructional choice is intended to give effect to the presumed purpose of the parties. That purpose is to be ascertained objectively considering the text, context and purpose of the instrument. The appellant’s submission 110 The appellant submits that the construction of clause S1.85 determined by the Full Bench erodes part of the benefit that clause was intended to confer, and fails to allow account to be taken of increases in rates of remuneration between the time of injury and the time of receiving an entitlement under the Schedule. 111 The appellant submits that on its proper construction clause S1.85 provides that there must be an adjustment to NWE. That adjustment, on the appellants submission, must reflect all increases in rates of remuneration applicable to the worker’s pre-injury classification, being from when NWE were last set either under the relevant compensation Act or by the previous adjustment under the Schedule. The former applies in Mr Kancheff’s case, being when AWE were set under the RTW Act. 112 The appellant contends that the Full Bench erred in its construction of clause S1.85, particularly by adopting a construction which: (i) is not expressed by the text of the clause, even if read liberally, whether read alone, or in the context of the Schedule as a whole; (i) is inconsistent with the expressed purpose of the Schedule; and (iii) is derived from the Full Bench’s identification of purpose, which purpose is not supported by the text of the Schedule, or the circumstances surrounding the insertion of the Schedule, resulting in a departure from principle relating to implied terms. 47 [2025] SASCA 92 at [22]-[24]. -- 25 of 43 -- [2026] SASCA 79 Stanley JA 24 Circumstances in which S1.85 operates 113 The appellant submits that clause S1.85 operates in four circumstances, as set out below. However, in each of the four circumstances where clause S1.85 applies, the appellant submits the words of that clause would not change in meaning. The four circumstances include: (i) the present circumstance, where the adjustment is consequent upon the entry by a worker into the Schedule immediately after ceasing the weekly payment entitlement under the RTW Act; (ii) where the adjustment is consequent upon the entry by a worker into the Schedule at some later point in time; (iii) where a subsequent review occurs during each year of incapacity; and (iv) where a subsequent review occurs following resumption of income compensation payments after a period of non-receipt. 114 As I have said, the appellant submits clause S1.85 requires that an adjustment to the NWE reflect any increases in the relevant rates of remuneration, being the rates of remuneration applicable to the pre-injury classification of the worker. The relevant class of increases can, as the appellant submits, only sensibly be those increases which have occurred since the previous setting of NWE, otherwise, the expression “any increases” becomes untethered from anything. The appellant submits this textual analysis is supported by the terms of clause S1.86. Both subclause S1.86.1 and S1.86.2 refer to the subject of the adjustment being the pre-existing NWE, being the NWE which had previously been set. 115 Under the Schedule an eligible employee with an eligible injury may not become entitled to income compensation payments until one of the above four circumstances occurs. In each of the four circumstances, the resumption of the entitlement to income compensation payments will give rise to the requirement for a review, including a review under clause S1.85. The appellant submits that it is difficult to see how clause S1.85 could possibly operate in respect of those circumstances unless it is construed so that the increases to be reflected in the adjustment are the increases since NWE were last set; any alternative would seem to give rise to completely arbitrary outcomes. 116 The appellant submits this textual understanding is also supported by clauses S1.54 to S1.56.2 of the Schedule, which give rise to the obligation to undertake a first work capacity review (the first review). 117 Clause S1.55 provides that an eligible employee is entitled to income compensation payments under the Schedule at the same rate as weekly payments under the RTW Act, until a work capacity review is conducted. Clause S1.56 then provides for the potential outcomes of the work capacity review. If the review results in a disentitling assessment, the worker is entitled to 13 weeks further -- 26 of 43 -- [2026] SASCA 79 Stanley JA 25 payment and given review rights, but if the review results in an entitling assessment the respondent must conduct reviews under Part 9 of the Schedule and adjust the worker’s income compensation accordingly. 118 The appellant submits this textual analysis is again supported by the surrounding context as: (i) First, clause S1.84 makes clear that the respondent has flexibility as to when to conduct the review, so long as it is during the first year of incapacity. Given that flexibility, there may be different periods of time between each review. In those circumstances it is difficult to see what temporal concept “any increases” might attach other than to the time of the last setting of NWE; and (ii) Second, given that the Schedule contemplates periods of time in which a worker with an eligible injury may not be entitled to receive income compensation payments under the Schedule, but then becomes entitled, or returns to entitlement to income compensation in respect of the same eligible injury, clause S1.85 is only workable if the increases to be reflected in the adjustment are those occurring since NWE were previously set. 119 That sequence of obligations, according to the appellant, suggests that the very purpose of the first review of NWE is to adjust the NWE by reference to the increases in rates of remuneration since the NWE were last set. Accordingly, the natural and ordinary meaning of the words of clause S1.85 is, as the appellant contends, that NWE must be adjusted to reflect any increases in the relevant rates of remuneration since the NWE were last set. 120 The appellant submits it is impossible to discern from the text of clause S1.85 the qualification found by the Full Bench to the effect that the only increases which are to be reflected in the adjustment are those that have occurred after the worker ceased to receive weekly payments under the RTW Act. 121 Rather, the appellant submits that when read as a whole, the Schedule is an attempt to reproduce the principles and benefits once provided under the WRC Act, and that this attempt to reproduce is for the cohort of workers who fall within the scheme. The appellant submits that it is hard in that sense to reconcile with the concept that in respect of an annual adjustment the authors intended to preserve an element of the RTW Act scheme. Such that, as the appellant submits, if the qualification determined by the Full Bench is to be found, it is not in the words of the Schedule; it can only be found by resort to purpose. -- 27 of 43 -- [2026] SASCA 79 Stanley JA 26 The purpose of the Schedule 122 The appellant relies on the judgment of this Court in Kimber v Chief Executive, Department of Treasury and Finance.48 This Court, in construing the compensability provisions in a relevantly identical award, found that the clauses being construed in that case highlight “an industrial purpose of providing heightened compensatory protection”.49 As I have noted, the appellant submits that the purpose of the Schedule has been articulated in clause S1.1, namely, to provide benefits to eligible employees that would have been applicable under the WRC Act if they cease to be entitled to similar benefits under the RTW Act. The appellant submits that express purpose is the surest guide to the objectively ascertainable intention of the parties. To the extent that a purposive approach is to be adopted, that purpose should be preferred. 123 The appellant submits it would be consistent with that purpose, and a more likely intention to attribute to the authors of the Schedule, that the adjustment to NWE, contemplated by clause S1.85, reflects any increases since the NWE were last set, so as to maintain the value of NWE earnings. 124 On the other hand, the appellant submits it would be inconsistent with that purpose, and an unlikely intention to ascribe to the authors of the Schedule, that the increases reflected in the adjustment not include increases since the NWE were last set; and that such an outcome would only entrench the loss in value of those NWE created by the RTW Act. The appellant submits it would be odd, having sought to recreate the entitlements for eligible employees with eligible injuries that would have been applicable under the WRC Act, that the authors would have intended to partially restore only one particular entitlement, namely the entitlement to annual adjustments to maintain the value of the NWE, when there is nothing in the Schedule from which it could be positively inferred that the intention of the authors was to create this gap. 125 The Schedule contains what the appellant submits are a detailed set of provisions, as outlined above, which the ordinary meaning of the terms are clearly capable of being construed to mean that the review of the quantum of the income compensation entitlement is to reflect increases in rates of remuneration since the NWE were last set under a compensation Act. 126 The appellant submits that it is not apparent from the Full Bench’s reasons how it envisaged that the Schedule gave effect to the qualification for entitlement. It follows that, as the appellant submits, it is not clear whether the qualification is to be implied into clause S1.85 itself, or whether that clause is subject to an implication residing elsewhere in the Schedule. Whichever is the case, the appellant submits it can only be inferred that the Full Bench’s construction relies 48 [2021] SASCA 133. 49 Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133 at [50]. -- 28 of 43 -- [2026] SASCA 79 Stanley JA 27 upon an implied term, when there is no proper basis for the implication of such a qualification into the Schedule. 127 Nonetheless, the appellant submits that the adoption of such an implication sits uneasily with the principles of construction of industrial instruments, in particular: the need to discern the presumed intention of the parties either by reference to the language they have used, or by assuming the arbitral function of giving effect to some anteriorly derived notion of what would be fair regardless of the terms of the text of the instrument; such that the adoption of an implied term into the Schedule is inconsistent with the principles of the implication of a term in a written instrument.50 128 It follows on the appellant’s submission that if there were any intention not to address the cut off of payments after two-year’s of NWE under the RTW Act, in a scheme otherwise providing for maintenance of the value of NWE, it would be expected that that intention be made express, or at the least be capable of being inferred. The focus of the Schedule 129 The appellant submits that the Full Bench appears to have reached its conclusion as to the correct construction of clause S1.85 on the basis that the Schedule has a “forward-looking” focus, such that: • adjustments by reference to increases in rates of remuneration occurring prior to a worker claiming the entitlement to additional compensation would be inconsistent with that focus; and • as the Schedule adopts the rate of NWE determined under the RTW Act, adjustments by reference to increases in rates of remuneration occurring while the worker is in receipt of payments under the RTW Act would also be inconsistent with that focus. 130 On the contrary, the appellant submits, for the purpose of the Schedule, a worker’s qualification for entitlement turns primarily on certain events which occurred in the past, namely: the circumstances of the injury; the claiming of compensation; the acceptance of the claim under a compensation Act; and the cessation of entitlement to weekly payments under the RTW Act. 131 Given that past focus in respect of qualification for entitlement, the appellant submits it would be unsurprising that quantum of entitlement also turns on past events because: • the conception of a forward-looking focus obviously does not preclude the Schedule operating by reference to past events; and 50 Realestate.com.au Pty Ltd v Hardingham and Ors (2022) 277 CLR 115 at [18]. -- 29 of 43 -- [2026] SASCA 79 Stanley JA 28 • That being so, the forward-looking focus provides, as the appellant submits, no basis for excluding increases in rates of remuneration since the provisions of the Schedule are enlivened by a past event, namely, the eligible injury. 132 As it transpires, the quantum of weekly payments does turn substantially on a past event, namely, the setting of NWE under a compensation Act. This is how awards operate.51 I will return to this. 133 The appellant submits that the Full Bench’s conclusion that the Schedule adopts the rate of NWE under the RTW Act is inconsistent with the definition of NWE contained in clause S1.19. That provides that NWE means the eligible employee’s NWE under the relevant compensation Act as adjusted pursuant to Part 9 of the Schedule. The appellant submits that on the contrary, that definition necessarily envisages that for the purposes of the Schedule, the rate of NWE which had been determined under a compensation Act will be the subject of adjustment under the Schedule. 134 As I have noted, in reaching its conclusion that the Schedule adopts the rate of NWE last set under a compensation Act, the Full Bench relied upon its earlier decisions in A and Chief Executive, Department of Treasury and Finance v A, A v Chief Executive, Department of Treasury and Finance.52 The appellant submits however that A does not support the conclusion that the Schedule adopts the rate of NWE last set under a compensation Act so as to preclude their adjustment. The appellant submits that unlike the case in A, this matter is not concerned with the recalculation of entitlement under a compensation Act, it is concerned only with the adjustment of the NWE last set under a compensation Act, for the purposes of determining the quantum of entitlement under the Schedule. 135 Ultimately, the appellant submits the Full Bench’s qualification is neither necessary to give efficacy to the Schedule nor so obvious that it goes without saying; rather it contradicts, or at least is in tension with, the express terms of clause S1.85 and clause S1.1. The respondent’s submission 136 The respondent submits that the construction adopted by the Full Bench that the determination of economic adjustments made under the additional compensation scheme should not have regard to a time when the eligible employee received benefits under the RTW Act is correct. That is, properly construed, as the respondent submits, clause S1.85 of the Schedule, that provides for NWE to be adjusted “to reflect any increases in the rates of remuneration”, only refers to increases in the rates of remuneration that occur after an eligible employee’s entitlements to weekly payments cease to be payable under the RTW Act. 51 Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298 at [147]-[155]. 52 A v South Australian Police [2020] SAET 204; [2021] SAET 217 at [54]-[55]. -- 30 of 43 -- [2026] SASCA 79 Stanley JA 29 137 The decision of the Full Bench turns on the construction of the words “to reflect any increases in the rates of remuneration” in clause S1.85, which the respondent submits was answered in the context of the scheme for additional payments of compensation enshrined in the Schedule and by reference to the evident purpose of the scheme. The respondent submits the text, construed by reference to its context, and the purpose of the additional compensation scheme, supports a construction that the phrase refers to such increases that are operative after the eligible employee ceased to be entitled to weekly payments under the RTW Act. As such, in reviewing Mr Kancheff’s NWE in May and/or June 2023, the respondent submits SAFECOM was not required to take into account the increase in rates of remuneration of 2.5% per annum applicable in January 2021 as at that time Mr Kancheff continued to be entitled to weekly payments under the RTW Act. The starting factum and operation of the Schedule 138 The respondent submits that there is an issue due to clause S1.85 not identifying expressly the starting factum from which any “increases” are to be measured. The respondent submits clause S1.85 does not specify whether any “increases” are to be measured against the rates of remuneration as those rates existed at the time the NWE figure was last set, or against the rates of remuneration as those rates existed when the eligible employee ceased to be entitled to weekly payments under the RTW Act, and then commenced on the additional compensation scheme, or against some other factum. The respondent submits that clause S1.85 may however provide some indication as to the factum from which any “increases” are to be measured. 139 The temporal focus of the measure of the adjustment is, as the respondent submits, suggested by the use of the words “an eligible employee who is entitled to income compensation” in clause S1.85. Following that suggestion, an entitlement to income compensation under the Schedule would only arise where an eligible employee commences on the additional compensation scheme, which relevantly depends on weekly payments under the RTW Act having ceased. In addition, the respondent submits, the references to “… shall be adjusted” and “to reflect any increases…” are, as Rossi DPJ recognised, “indicative of a review to determine the rate of remuneration to be paid into the future”.53 140 Contrary to the appellant’s submissions, the respondent submits that while the adjustment is made to NWE, or pre-existing NWE, which initially means “the eligible employee’s [NWE] under the relevant compensation Act”,54 there is no persuasive textual indication from the definition of NWE to infer that the adjustment is necessarily to be undertaken by bringing to account all increases in 53 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [65]. 54 Clause S1.19 of the Schedule. -- 31 of 43 -- [2026] SASCA 79 Stanley JA 30 the rates of remuneration that have occurred since the NWE were originally set under the relevant compensation Act.55 141 The respondent submits that of more significance than the text of clause S1.85 is its context in juxtaposition with clause S1.84 which provides for the obligation to make the economic adjustments. The initial obligation to make an economic adjustment occurs where an eligible employee is incapacitated for work or appears likely to be incapacitated for work for more than one year. As is the case with clause S1.85, the respondent submits clause S1.84 does not expressly identify the starting factum from which the time period of more than one year of incapacity is to be measured. 142 However, for the purposes of clause S1.84, the respondent submits the timeframe for that measurement is the period after the eligible employee has commenced on the additional compensation scheme, such that there is no utility in “making an adjustment to the amount of the income compensation” under clause S1.84 as no such compensation is payable. 143 The respondent submits that once an eligible employee commences on the additional compensation scheme, an obligation on the employer to make an economic adjustment arises where an eligible employee is incapacitated for work, or appears likely to be incapacitated for work, for more than one year from that commencement. As such, the obligation to make an economic adjustment would be measured from the time that the eligible employee commences on the additional compensation scheme. The respondent submits this provides a sound contextual reason to construe clause S1.85 as reflecting that same time period, and submits further that the provisions for the obligation to make economic adjustments, and provide for the quantum of such adjustments, operates harmoniously by reference to that same time period. 144 The respondent submits, as to the time at which an eligible employee commences on the additional compensation scheme, commencement relevantly occurs once weekly payments under the RTW Act have ceased, by reason of: • the relevant purpose of the additional compensation scheme being to provide benefits to eligible employees with eligible injuries if they cease to be entitled to similar benefits under the RTW Act, such that there can be no benefits under the Schedule until the eligible employee ceases to be entitled to weekly payments under the RTW Act; or • the purpose of the additional compensation scheme being supported by the express provision that any payment which would otherwise be made under the additional compensation scheme will not be payable if precisely the same payment has already been made under a compensation Act;56 or 55 Appellant’s Written Submissions at [39]-[41]. 56 Clause S1.3.1 of the Schedule. -- 32 of 43 -- [2026] SASCA 79 Stanley JA 31 • the cessation of weekly payments under the RTW Act being central to the way in which the particular provisions for the commencement of income compensation operate. The Schedule provides that an eligible employee’s entitlement to receive income compensation does not commence, subject to one exception, unless the eligible employee is assessed to meet certain work capacity criteria, namely, the “entitling assessment”. Nevertheless, once an entitling assessment is made the eligible employee is entitled to arrears and interest for all periods when they were entitled to income compensation. In the case of an eligible employee whose incapacity for work only subsequently meets the threshold for an entitling assessment, such an employee has a relevant conditional or inchoate entitlement from the date when weekly payments under the RTW Act ceased; or • the requirement of an employer to conduct reviews in accordance with Part 9 of the Schedule and adjust the eligible employee’s income compensation accordingly, in the event of an entitling assessment being made following a work capacity review. However, this does not suggest that the economic adjustment provisions do not operate in accordance with their terms. The obligation to make an economic adjustment in these circumstances only arises where the eligible employee is incapacitated for work, or appears likely to be incapacitated for work, for more than one year. 145 The respondent submits a further significant indicium of the construction of clause S1.85 of the Schedule is that the employer’s obligation to make any economic adjustments under clause S1.84 does not arise immediately upon an eligible employee commencing on the additional compensation scheme, and may not arise at all in respect of an eligible employee whose incapacity for work does not extend for more than one year. The respondent submits that if the parties to the Award had intended that an adjustment should be made to NWE so as to reverse, for the purposes of income compensation under the Schedule, the effect of the statutory edict that a non-seriously injured worker does not receive economic adjustments under the RTW Act, it could be expected that this would have been expressly provided for, and to be undertaken at the time that the eligible employee transitioned onto the additional compensation scheme. The respondent submits that the absence of such a provision is telling. 146 The respondent submits a further contextual factor is the operation of clause S1.86 of the Schedule. Clause S1.86.2 provides that it is open to an eligible employee to elect, in writing, to receive an economic adjustment in accordance with the WPI, rather than to reflect increases in the rates of remuneration applicable to the employee’s classification as prescribed by an award or enterprise agreement. In this case, as I have said, Mr Kancheff elected to receive an economic adjustment in accordance with the WPI payable under the 2022 EA. Clause S1.87 provides that if an eligible employee makes such an election in writing to have their NWE adjusted in accordance with the WPI, the employer must adjust the eligible employee’s NWE accordingly. The respondent submits however that -- 33 of 43 -- [2026] SASCA 79 Stanley JA 32 there is nothing in the text of clause S1.86 to suggest that the relevant increases in the WPI take into account increases that occurred while the eligible employee was in receipt of weekly payments under the RTW Act. 147 The respondent also submits that it would be an incoherent outcome if “any increases in the rates of remuneration”, for the purposes of clause S1.85, referenced a different period of time than the increase in the rate of remuneration in accordance with the WPI for the purposes of clause S1.86.2.57 Further, the respondent says through the election mechanism, it may be the case that the eligible employee’s NWE are adjusted by a larger amount than the increases in rates of remuneration prescribed by an award or an enterprise agreement. The respondent submits this is one mechanism that indicates that NWE, or indeed the amount of income compensation, is not necessarily intended to maintain parity with the rate payable to working firefighters.58 148 The respondent submits another contextual indicium is found in clause S1.88 of the Schedule, which provides that an economic increase reflecting changes to remuneration in an award or enterprise agreement operates from the date of the employer’s decision on review, “back-dated” to the date of the relevant changes in rates of remuneration. The respondent submits that on the appellant’s construction of clause S1.85, one or more applicable increases in the rates of remuneration at the time of a first economic adjustments review would be likely to occur during the time in which the eligible employee was in receipt of weekly payments under the RTW Act. In respect of such increases, the respondent submits clause S1.88 cannot sensibly operate in accordance with its terms, and by way of contrast, this difficulty does not arise on the construction contended for by the respondent, which was accepted by the Full Bench. The purpose of the Schedule 149 The respondent submits that clause S1.1 identifies the evident purpose of the additional compensation scheme introduced by the Schedule, as providing “benefits” in a prospective sense; having a forward focussed approach, as the Full Bench accepted. The respondent submits the Schedule does not contemplate providing benefits until similar benefits cease under the RTW Act, and does not seek to “top up” past payments made under the RTW Act. The respondent submits the construction of “any increases” in clause S1.85, as referring to increases after weekly payments under the RTW Act have ceased, is consistent with this purpose. The respondent also submits the fact that qualification for entitlements under the scheme, and the quantification of those entitlements, depend upon past events, does not relevantly derogate from the contended purposive approach. 150 On the other hand, the respondent submits that the appellant seeks to draw a different inference from the object identified in clause S1.1 of the Schedule, being that the purpose was to restore benefits to workers that they would have received 57 Clause S1.86.2 of the Schedule. 58 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [57]. -- 34 of 43 -- [2026] SASCA 79 Stanley JA 33 if the WRC Act had continued. To reiterate, one of the benefits removed by the enactment of the RTW Act was access to a mechanism to ensure that weekly payments kept pace with changes in the rates of remuneration, which is said to be eroded in part by the Full Bench’s construction of clause S1.85.59 However, the respondent submits that contention seeks to infer too much from the text of clause S1.1. The respondent submits such an erroneous assumption is also evident in the appellant’s contention that the outcome of the Full Bench’s construction is only to entrench the loss in value of NWE created by the RTW Act, and that it should not be inferred that the intention of the authors “was to create this lacuna”.60 151 The respondent seeks support from the Full Bench’s reliance on previous decisions concerning almost identical provisions found in the Police Officer’s Award. The Full Bench cited with approval the reasons of Gilchrist DPJ in A,61 set out earlier in these reasons. The construction of clause S1.85 adopted by the respondent is, as the respondent submits, supported by the reasons in A,62 and ensures a seamless transition from weekly payments under the RTW Act to income compensation payments under the Schedule in respect of the question of payments. 152 The respondent submits it would be a surprising result if the initial rate of NWE applied for a period of up to one year, but then in cases where there is a first economic adjustments review, increases in rates of remuneration that occurred by reference to events in the period of entitlement under the RTW Act are to be brought to account in reviewing the appellant’s NWE. The respondent submits this would not be a seamless transition, rather it gives rise to conflict within the scheme.63 That submission should not be accepted. I will return to this. 153 The respondent submits that the Full Bench’s reasons do not depend upon implying any term into the compensation scheme64 but rather construes the text within the context and purpose of the additional compensation scheme as a whole. 154 Accordingly, for the reasons given by the Full Bench, which the respondent submits should be confirmed on appeal, the phrase in clause S 1.85, “to reflect any increases in the rates of remuneration”, refers only to increases in the rates of remuneration that occur after the eligible employee ceases to be entitled to weekly payments under the RTW Act. Consideration 155 The respondent contends that the text of clause S1.85 of the schedule, when construed by reference to its context and purpose, is to be interpreted to mean that increases in rates of remuneration that occur before the eligible employee’s entitlement to weekly payments under the RTW Act cease, are not included in the 59 Paragraphs [60], [62] and [111] of these reasons. 60 Appellant’s Written Submissions at [55]-[56]. 61 A v South Australian Police [2020] SAET 204 at [40]. 62 A v South Australian Police [2020] SAET 204. 63 Kancheff v Chief Executive, Attorney General’s Department & Anor [2025] SAET 10 at [50]. 64 Appellant’s written submissions at [67]-[70]. -- 35 of 43 -- [2026] SASCA 79 Stanley JA 34 adjustment. This, as I have said, was the way in which the Full Bench construed clause S1.85. As such, in reviewing the appellant’s NWE in May and/or June 2023, the respondent was not required to take into account the increase in rates of remuneration of 2.5% per annum applicable in January 2021 as, at that time, the appellant continued to be entitled to weekly payments under the RTW Act. 156 That submission should not be accepted. 157 The words of clause S1.85 do not convey that meaning. To construe them as though they mean to confine increases in rates of remuneration to those which are operative after the eligible employee ceases to be entitled to weekly payments under the RTW Act is, as the appellant contends, to rewrite clause S1.85, not to construe it. Rather, the adjustment contemplated in clause S1.85 expressly applies to “any” increases in the relevant rates of remuneration applicable to the classification held by the employee immediately prior to injury. I do not consider there to be a basis to read down the ordinary, grammatical meaning of “any”. 158 The construction of clause S1.85 for which the appellant contends is supported by its context. It is necessary at this point to briefly reiterate the circumstances in which the Schedule was incorporated into the Award. 159 The Schedule was agreed by the parties following changes to the statutory scheme of worker’s compensation brought about by the enactment of the RTW Act. The RTW Act commenced operation in 2015. The RTW Act eliminated certain benefits payable to injured workers pursuant to the WRC Act. The central purpose of the Schedule was to restore those benefits to eligible employees who suffered eligible injuries in circumstances of danger after the cessation of the entitlement to those benefits. The operation of the scheme of the Schedule was facilitated by clause S1.85 which is intended to provide access to a mechanism for the adjustment of NWE to reflect any increase in rates of remuneration of eligible employees. That mechanism is restored by clause S1.85 of the Schedule. The construction of clause S1.85 reflects that purpose. 160 The construction of clause S1.85, as determined by the Full Bench and relied on by the respondent, constricts the benefit the clause is intended to provide, in that the construction fails to allow account to be taken of increases in rates of remuneration between the time of injury and the time the injured employee is entitled to the benefits conferred under the Schedule. 161 There is no reason to conclude that clause S1.85 cannot operate in accordance with the construction that “any increases” in rates of remuneration means increases before the cessation of the employee’s entitlement to weekly payments under the RTW Act, even in circumstances where a worker with an eligible injury may not immediately be entitled to receive income compensation payments, but then -- 36 of 43 -- [2026] SASCA 79 Stanley JA 35 becomes entitled; or the entitlement to such payments in respect of the same eligible injury is restored.65 162 Further, as the appellant submits,66 clause S1.85 operates in four circumstances. First, the present circumstance, where the adjustment is consequent upon the entry by an eligible employee into the scheme established by the Schedule, immediately after ceasing weekly payments under the RTW Act. Second, where the adjustment is consequent upon the entry by an eligible employee into the scheme established by the Schedule at some later time. Third, after a subsequent review during each continuing year of incapacity. Fourth, after a subsequent review following resumption of income compensation payments after a period when the employee was not in receipt of additional compensation. 163 The appellant’s submission that clause S1.85 must have the same meaning in each circumstance should be accepted. 164 In respect of each of the three circumstances, other than the circumstance at issue in these proceedings, the respondent’s limitation on the increases in rates of remuneration contemplated by clause S1.85 is either irrelevant to its operation, or produces unlikely results. Further, in those other three circumstances, it is difficult to see how clause S1.85 could be construed in any other way than that the increases rates of remuneration contemplated by the clause are those increases occurring since NWE were last set or adjusted. 165 The task of construction is to identify objectively the meaning intended by its authors.67 Construing clause S1.85 as containing the limitation proposed by the respondent, when that limitation is not supported by the text, and is either irrelevant to its operation, or produces absurd or unlikely results in three of the four circumstances in which it operates, is an unlikely intention to ascribe to the authors. This is particularly so where the clause operates without the limitation in each of those circumstances. However, it is not necessary for the disposition of this appeal to consider those other three circumstances any further. 166 The starting point for the respondent’s contention is that the “starting factum” from which increases in rates of remuneration are to be measured is not expressly identified in clause S1.85.68 However, clause S1.85 identifies that starting factum by reference to what is being adjusted, namely, the eligible employee’s NWE. NWE is a defined term for the purposes of the Schedule. It is defined in clause S1.19 to mean the “eligible employee’s NWE under the relevant compensation Act as adjusted pursuant to Part 9” of the Schedule.69 Given that what is to be adjusted under clause S1.85 is the eligible employee’s NWE, the requirement that the adjustment “reflect any increases” in rates of remuneration must refer to those 65 Appellant’s written submissions at [45]-[46]. 66 Paragraph [114] of these reasons. 67 Qube Ports v Maritime Union of Australia [2018] FCAFC 72 at [65]. 68 Respondent's Written Submissions at [12]. 69 Clause S1.19 of the Schedule. -- 37 of 43 -- [2026] SASCA 79 Stanley JA 36 increases which have occurred since the NWE were last set or adjusted. Once it is accepted that clause S1.85 does identify the starting factum, much of the respondent’s argument falls away. It is on this basis that there is no reason to read down “any” in clause S1.85 once it is accepted that the commencement point is, as prescribed in that clause, “the rates of remuneration applicable to the classification held by the employee… immediately prior to the particular injury occurring…”. 167 The respondent also seeks to obtain contextual support for its textual construction from the premise that entitlements under the Schedule only commence upon, or relevantly depend upon, the employee’s “weekly payments under the RTW Act having ceased”.70 The appellant’s submission that this premise is false should be accepted. Entitlements to income compensation payment under the Schedule commence when entitlement under the RTW Act ceases, regardless of whether payments had been actually received or not, and only in circumstances where an entitling assessment is made.71 168 An employee can commence receiving income compensation payments under the Schedule notwithstanding not having been in receipt of weekly payments under the RTW Act.72 An employee also may not commence any entitlement to income compensation under the Schedule for quite some time after weekly payments, or entitlement to weekly payments, cease under the RTW Act. It follows that the respondent cannot be right in contending that entitlement necessarily commences on cessation of weekly payments under the RTW Act. Neither is the Schedule premised upon some smooth, seamless transition from weekly payments under the RTW Act to income compensation payments under the Schedule as the respondent submits.73 169 However, even if that is not correct and the Schedule is premised upon some smooth, seamless transition from weekly payments under the RTW Act to income compensation payments under the Schedule, it cannot matter in formulating the answer to the question of law. An intention that there be a seamless transition to income compensation payments under the Award is not inconsistent with the appellant’s construction of clause S1.85. 170 The respondent seeks further contextual support for its textual construction from clause S1.84. The respondent contends that by virtue of that clause, the initial obligation to make an adjustment following commencement of weekly payments under the Schedule occurs when an employee is incapacitated or appears likely to be incapacitated for more than one year. The first one year period commences when the employee commences entitlement under the Schedule. Therefore, it would follow that only those increases in rates of remuneration that occur after the commencement of that first one year period should be taken into account under 70 Respondent’s Written Submissions at [13], [15]. 71 Clauses S1.44 and S1.49 of the Schedule. 72 Clause S1.36 of the Schedule. 73 Respondent’s Written Submissions at [23]. -- 38 of 43 -- [2026] SASCA 79 Stanley JA 37 clause S1.85.74 However, this asserted correlation between the commencement of the first year of incapacity under the Schedule, and the increases in the rates of remuneration to be taken into account, is not apparent. 171 First, an employee is only entitled to weekly payments under the Schedule if there is an entitling assessment. There can only be an entitling assessment where the employer assesses the employee as being likely to continue to be incapacitated indefinitely.75 Necessarily that entails an assessment that the employee appears likely to be incapacitated for work for more than one year. 172 Second, clause S1.84 itself needs to be read in context. In particular, in respect of the commencement of an entitlement to income compensation immediately after cessation of weekly payments under the RTW Act, as in the circumstances of this case, clauses S1.54 to S1.56 suggest that the first review of NWE occurs upon the making of the entitling assessment, pursuant to clause S1.53, rather than at or, towards the end of the first year, of incapacity under the Scheme. 173 Third, in circumstances where an employee first becomes entitled to income compensation under the Schedule some time after they had ceased having any entitlement to weekly payments under a compensation Act, the respondent’s contention in reliance on clause S1.84 would have the effect of freezing the rate of income compensation payments for that employee under the Schedule at a rate set possibly many years earlier. That also seems to be an unlikely intention to ascribe to the authors of the Schedule. 174 The respondent also relies on what it identifies as the purpose of the Schedule, which is to provide benefits “in a prospective sense”, and with a “forward focused operation”.76 Yet, in the same paragraph of its submissions, the respondent concedes that under the Schedule both qualification for entitlement and quantification of entitlement depend upon past events. Having made that concession, the respondent then provides no purposive rationale as to why the authors of the Schedule intended that past increases in rates of remuneration should be excluded from the category of past events upon which qualification and quantification of entitlement depend. Further, the evident purpose which the respondent relies on is not drawn from the text of the Schedule and is not drawn from the surrounding circumstances. It is precisely the form of reasoning deprecated by Madgwick J in Kucks as being “some anteriorly derived notion of what would be fair or just … regardless of what has been written into the award”.77 175 It is true that the scheme of the Schedule which provides additional compensation operates prospectively. It provides entitlements from a time when an employee has ceased to be entitled to benefits under a compensation Act, 74 Respondent’s Written Submissions at [14]. 75 Clause S1.49 of the Schedule. 76 Respondent's Written Submissions at [19]; see also at [15.1]-[15.2] 77 Kucks v CSR Limited (1996) 66 IR 182 at 184. -- 39 of 43 -- [2026] SASCA 79 Stanley JA 38 particularly the RTW Act. But in doing so, both the entitlement and the quantum of the entitlement depend on the occurrence of past events i.e. the circumstances of the occurrence of the injury, a claim under a compensation Act, the acceptance of that claim, the cessation of the entitlement to benefits under the RTW Act, and the setting of the NWE. All of these past events are a necessary condition for access to, and the quantum of, the entitlement under the Schedule. 176 The way in which the Schedule operates is that it makes a provision for a prospective entitlement by reference to the occurrence of a number of past events, but in reality many of these events, while having occurred in the past, still apply to future events. These events provide for continuing benefits in the present and the future. 177 The respondent also claims support for its construction from the earlier decisions of the Full Bench in A and Chief Executive, Department of Treasury and Finance v A, A v Chief Executive, Department of Treasury and Finance.78 The appellant submits that these decisions are of little assistance in the present proceedings, as they deal with very different questions. I agree. 178 Most significantly, given the precise question at issue in these proceedings, it is important to note that there is no indication in those decisions that clause S1.85, or the definition of NWE in clause S1.19, were brought to the attention of the Full Bench in either case. In those circumstances, it is difficult to understand how A supports the conclusion that the Schedule adopts the rate of NWE last set under a compensation Act so as to preclude the adjustment of that rate. 179 Insofar as A determines that the Schedule does not permit the recalculation of entitlement under a compensation Act, it can be accepted that is correct.79 The Schedule is not concerned with affecting retrospectively a worker’s entitlement under a compensation Act. This matter involves no question of recalculation of entitlement under a compensation Act. It is only concerned with adjustment of the NWE last set under a compensation Act for the purposes of determining quantum of entitlement under the Schedule. 180 The appellant’s submissions address the unlikelihood of the purpose propounded by the respondent, or as found by the Full Bench, being an intended purpose. I agree that it is an error into which the respondent has fallen, to confuse submissions about purpose, and in particular submissions negativing a proposed purpose, with submissions regarding the construction of words read in context and consistent with its identified purpose. 181 It is clear that the central purpose of the Schedule is to restore the benefits previously available under the WRC Act to eligible employees with eligible injuries. Consistent with that purpose, and a more likely intention to attribute to 78 A v South Australian Police [2020] SAET 204; [2021] SAET 217. 79 Except for the specific provision in clauses S1.90-S1.97 of the Schedule providing for review of the calculation of AWE because of a change in a component. -- 40 of 43 -- [2026] SASCA 79 Stanley JA 39 the authors of the Schedule, is that clause S1.85 adjusts NWE to reflect any increases since the NWE were last set, so as to maintain the value of NWE. By contrast, it would be inconsistent with that purpose, and an unlikely intention to ascribe to the authors of the Schedule, that the increases reflected in the adjustment not include increases since the NWE were last set. That outcome would only entrench the resulting gap with the loss in value of those NWE created by the RTW Act. It would be incongruous that having sought to recreate the entitlements for eligible employees with eligible injuries, that would have been applicable under the WRC Act, the authors would have intended to partially restore only one particular entitlement, namely, the entitlement to a yearly adjustment to maintain the value of NWE. 182 The appellant’s submission should be accepted, that there is nothing in the Schedule from which it could be inferred that the intention of the authors was to create this gap. The Schedule contains prescriptive provisions, the ordinary meaning of which is that the review of the quantum of additional income compensation is to reflect increases in rates of remuneration since NWE were last set under a compensation Act. If it was intended not to address the cut off of payments after two-year’s of NWE under the RTW Act, in a scheme otherwise providing for maintenance of the value of NWE, it would be expected that such an intention would have been made express, or at the very least, that the Schedule would have employed language from which such an intention could be plainly inferred. 183 Because the appellant was receiving benefits under the RTW Act prior to when he commenced receiving benefits under the Award, the “relevant compensation Act” in this case is the RTW Act. It follows that the appellant’s rate of NWE for the purpose of the Schedule is the rate of NWE that last applied under the RTW Act. That rate does not include the economic adjustment sought by the appellant. 184 There is further reason to conclude that clause S1.85, apart from its express terms, cannot operate in accordance with the construction for which the respondent contends, that “any increases in rates of remuneration” mean increases only after the cessation of the employee’s entitlement to weekly payments under the RTW Act. 185 Clause S1.3 provides that the Schedule operates in addition to, and not instead of, any entitlements applicable under any other statute or law, except any payment which would otherwise be payable under the Schedule will not be payable if precisely the same payment has already been made under a compensation Act. That limiting condition in clause S1.3 does not apply to the appellant because the payment of additional income compensation pursuant to clause S1.85 is not precisely the same payment as a payment made under the compensation Act. 186 The respondent’s construction does not lend support to the respondent’s proposition that “any increases in the rates of remuneration” is limited to increases -- 41 of 43 -- [2026] SASCA 79 Stanley JA 40 after the cessation of the eligible employee’s entitlement to weekly payments under the RTW Act. The economic adjustment provided by clause S1.85 is not precisely the same as the payment prescribed by the RTW Act. Even accepting the respondent’s submission that clause S1.1 identifies the evident purpose of the additional compensation scheme as being to provide “benefits” in a prospective sense, that does not justify construing clause S1.85 in anything other than its ordinary grammatical sense. In its terms it should be construed as obliging an employer to adjust the NWE of an eligible employee to reflect any increase in the rates of remuneration. There is nothing in either text, context or purpose which would preclude the application of that entitlement in relation to past increases in rates of remuneration. Support for that proposition is provided where, once an entitling assessment is made, an eligible employee is entitled to arrears and interest for all periods when they were entitled to income compensation whether that be in the past, present or future. 187 Accordingly, the respondent’s submission that there is no utility in making an adjustment to the period of the income compensation before commencement on the additional compensation scheme as no such compensation is payable, should not be accepted. 188 The flaw in the respondent’s argument is the proposition that clause S1.85 must be construed to mean that the adjustment should not be undertaken by bringing to account any increase in the rates of remuneration that have occurred since the NWE were originally set under the relevant compensation Act. The eligible employee’s entitlement must be adjusted to reflect any increases in the rates of remuneration. The obligation to adjust NWE to reflect “any increases” in the rates of remuneration cannot be limited to increases in the rates of remuneration that occur after an eligible employee’s entitlements to weekly payments cease being payable under the RTW Act. The respondent’s construction is contrary not only to the text of clause S1.85 but also its context and purpose. Disposition 189 For these reasons the Full Bench erred in its construction of clause S1.85 by adopting a construction which is inconsistent with its text, not only in its ordinary grammatical sense but even if read liberally in the context of the Schedule. That construction is inconsistent with the express purpose of the clause. As a result, the appeal must be allowed. 190 Accordingly, in reviewing the appellant’s NWE in May and/or June 2023 the respondent was required to take into account the increase in rates of remuneration of 2.5% per annum applicable on 1 January 2021. 191 The answer given by the Full Bench to the question of law is not correct. Conclusion 192 I would grant leave to appeal and allow the appeal. -- 42 of 43 -- [2026] SASCA 79 Stanley JA 41 193 I would answer the question of law posed as follows: On the agreed facts, the increases in rates of remuneration that apply from 1 January 2021, 1 January 2022 and 1 January 2023 are required to be taken into account in reviewing Mr Kancheff’s notional weekly earnings in May and/or June 2023 under clauses S1.84 and S1.85 of the Award. -- 43 of 43 --