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[Extract from Queensland Government Industrial Gazette,

dated 17 February, 2006, Vol. 181, No. 7, pages 227-229]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003

Qantas Airways Limited AND Q-Comp (WC/2005/13)

VICE PRESIDENT LINNANE / 2 February 2006

Application to stay Q-Comp decision pending the outcome of appeal - No power to grant such application - Application dismissed - Workers' Compensation and Rehabilitation Act 2003, s. 566 - Industrial Relations Act 1999, s. 274.

DECISION

[1] This is an application by Qantas Airways Limited (Applicant) for an order that the decision of Q-Comp (Respondent) be stayed pending the hearing and determination of an appeal against the Q-Comp decision. The Applicant is a licensed self-insurer pursuant to the Workers' Compensation and Rehabilitation Act 2003 (Act).

[2] On 20 April 2005, an employee of the Applicant, Russell Butland, lodged an application for compensation with the Applicant alleging "severe work related stress and depression and anxiety disorder" arising out of an event on 7 April 2005. The Applicant investigated whether the injury alleged was compensable pursuant to the Act and on 7 July 2005 forwarded correspondence to Mr Butland declining his application for compensation. Mr Butland then lodged an application for review of the Applicant's decision with the Respondent.

[3] The Respondent, in correspondence dated 14 November 2005, advised the Applicant that it had set aside its decision determining that Mr Butland's claim for compensation to be one for acceptance and referred the matter back to the Applicant to determine the length and degree of the worker's incapacity. It is noted that the Applicant only received the review decision on 24 November 2005.

[4] A Notice of Appeal against the Respondent's decision was lodged with the Industrial Registry on 1 December 2005 together with this application for a stay of the Respondent's decision.

[5] As a licensed self-insurer in Queensland, the Applicant is obliged to comply with the Respondent's performance standards and benchmarks for Queensland workers' compensation insurers. Standard 4.3.3 obliges the Applicant to comply with the Respondent's review decision within seven (7) working days of notification of the review decision. The concern for the Applicant is that if a stay is not granted then:

·  the Applicant would be required to pay Mr Butland his compensation benefits and would be unable to recover those benefits if successful in the appeal: see s. 566 of the Act; and

·  if the Applicant does not pay workers' compensation benefits in accordance with the Respondent's review decision then the Applicant will be in breach of its obligations pursuant to its workers' compensation self-insurer's licence.

[6] In the hearing the Applicant relied upon a further affidavit of Timothy Sprey who relied upon information provided to him by Cameron Urquhart, the Applicant's Queensland Workers' Compensation Manager, to the effect that Mr Butland was still being paid his sick leave entitlements. The Applicant submits that the Commission is given jurisdiction to deal with this application by virtue of s. 548A and s. 549 of the Act and s. 265 of the Industrial Relations Act 1999.

[7] It is submitted further that s. 274 of the Industrial Relations Act 1999 gives the Commission the broadest of powers, empowering it to "do all things necessary and convenient" to perform its functions, including it is said, the power to grant a stay of the decision under appeal.

[8] The Applicant then contended that a weighing of the relevant considerations to be considered in a granting of a stay, strongly favours the stay being granted. Those considerations are said to be:

·  the onus is on the Applicant to show that it is "appropriate" that a stay be granted: see Croney v. Nand [1999] 2 QdR 243 following Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 693-4;

·  in exercising its discretion, the Commission should weigh considerations such as the balance of convenience and the competing rights of the parties before it: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; and

·  where there is a risk that the appeal will prove abortive or nugatory if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting the stay.

[9] The Applicant submits that without a stay, the Applicant will be obliged to pay Mr Butland his compensation benefits as to do otherwise would mean that the Applicant would be in breach of its obligations pursuant to its workers' compensation self-insurer's licence. As mentioned previously standard 4.3.3 obliges the Applicant to comply with the Respondent's review decision within seven (7) working days of notification of the review decision. Further s. 566 of the Act provides that the recipient of workers' compensation is not required to refund payment to the insurer if the appeal body or the Industrial Court decides that an insurer is not liable to make payments of compensation to the worker.

[10] Thus the Applicant submits that a failure to grant the stay will lead to Mr Butland receiving, and retaining, compensation even if the Commission on the substantive appeal determines that no "injury" as defined under the Act was suffered. This, the Applicant submits, would result in a windfall for Mr Butland, and an unjust imposition on the Applicant.

[11] Further, the Applicant submitted at the original hearing that there would appear to be no prejudice to Mr Butland if a stay is granted as Mr Butland was presently on sick leave (12 December 2005) and has been paid sick leave for all time off work. Thus the detriment to the Applicant would be, at the least, wages from the date of injury being 7 April 2005 up to the present time given that Mr Butland was still on sick leave, i.e. some 36 weeks after the injury. There was no suggestion that that was the extent of Mr Butland's time off work as a result of the injury.

[12] The application is opposed by the Respondent and it submits that the Commission has no power to grant a stay in such matters. It points to the following legislative provisions:

· section 347 of the Industrial Relations Act 1999 is expressed to apply "if an appeal is made under this part", i.e. under Chapter 9 of the Industrial Relations Act 1999. The current application is not one that fits the description of any of the types of appeal which are provided for under s. 343 and s. 344 of the Industrial Relations Act 1999; and

· the substantive appeal is one necessarily brought pursuant to s. 549(1) and s. 550 of the Workers' Compensation and Rehabilitation Act 2003 and there is no express provision for staying decisions which are subject to appeal under that legislation. This it is said is a strong indication that there is no power to order such a stay.

[13] The Respondent also points to the fact that the Workers' Compensation and Rehabilitation Act 2003 is a beneficial piece of legislation with the legislative scheme dealing with rehabilitation of injured workers and that such rehabilitation is best facilitated by early assistance towards the cost of rehabilitation irrespective of subsequent determinations as to strict questions of liability.

Conclusion

[14] At the conclusion of the hearing in this matter I advised the parties that it was my view that I did not have the power to grant a stay. In circumstances, however, where I could arrange for a hearing of the substantive appeal in January 2006 and the amount of compensation to Mr Butland was reasonably substantial, i.e. 36 weeks' plus of salary and entitlements, I advised the parties that I would reserve this decision until the hearing of the appeal.

[15] I am today informed that the material presented to me at the hearing was incorrect. In fact Mr Butland was off work on sick leave for the period 7 April 2005 to 31 May 2005. Mr Butland received a medical certificate with a full clearance for normal duties as at 1 June 2005 although he had medical treatment during the period 1 June 2005 to 10 June 2005. The affidavit of Cameron Urquhart filed with leave today indicates that the total compensation payable to Mr Butland, if his claim is accepted, to be $11,598.41 in weekly benefits and a further amount of medical costs estimated to be in the vicinity of $1,000.00. This position is a lot different to the original material which indicated a minimum of 36 weeks in weekly payments. Mr Butland's net weekly earnings at the time of the injury was $1,414.44. The minimum weekly payment of compensation should the claim be accepted would be $50,919.84 plus medical costs.

[16] Even the current material is incorrect because the Applicant paid Mr Butland sick leave for the period 7 April 2005 to 31 May 2005 albeit at a lesser rate than the $1,414.44 per week. It would be simply a matter of crediting Mr Butland's sick leave entitlements for the eight (8) weeks and one (1) day that he was off work. If successful on the appeal then the Applicant would simply have to debit Mr Butland's sick leave entitlements. There does not appear to be any prohibition in s. 566 of the Workers' Compensation and Rehabilitation Act 2003 to the debiting of the worker's sick leave entitlements if the insurer is successful on appeal.

[17] On the material before me today the Applicant would have an amount of approximately $1,000.00 to pay Mr Butland in medical costs and a further $2,500.00 in the difference between his sick leave payments and the workers' compensation payments for the period 7 April 2005 to 31 May 2005, i.e. a total amount of approximately $3,500.00. Had this material been before me on 13 December 2005 I would not have taken the unusual step of reserving this decision. At the conclusion of the hearing today I informed the parties that I dismiss the application for a stay.

[18] As to whether the Commission has power to stay such applications, s. 347 of the Industrial Relations Act 1999 deals specifically with the staying of a decision under appeal. That power is limited to appeals made under Part 9 of Chapter 8 of that Act. This is not such an appeal and therefore s. 347 is of no assistance. Section 110(1) of the Industrial Relations (Tribunals) Rules 2000 refers to stays sought under s. 347 of the Industrial Relations Act 1999, s. 231 of the Vocational Education, Training and Employment Act 2000, s. 171 or s. 174 of the Electrical Safety Act 2002 and s. 151 or s. 154 of the Workplace Health and Safety Act 1995. Each of those provisions in those respective pieces of legislation give either the Industrial Court or the Commission power to grant a stay pending an appeal.

[19] The Workers' Compensation and Rehabilitation Act 2003 gives no such power to the Commission to stay a decision of Q-Comp pending an appeal. The general power in s. 274 of the Industrial Relations Act 1999 cannot give the Commission a power to grant a stay where there is specific power in s. 347 of the Act limited to the granting of stays where an appeal is pending under s. 343 and s. 344 of the Act.

[20] The intent of s. 566 of the Workers' Compensation and Rehabilitation Act 2003 seems to be to ensure that injured workers, whose claim for compensation having been accepted and paid by the insurer, are not faced with recovery of those payments should an appeal body or the Industrial Court determine otherwise on appeal. The position in this application is somewhat different, i.e. the original claim for compensation was rejected by the insurer and so no monies were paid to the worker and Q-Comp decided differently. Whether standard 4.3.3 can be modified to deal with the circumstances similar to that of Mr Butland, particularly where the amount of money to be paid is substantial, is a matter for the relevant authorities.

[21] In circumstances where the payment by the self-insurer to the worker was approximately $3,500.00, it is doubtful whether a stay would have been granted even if the Commission had power to grant such a stay. When the Commission has no such power no stay is granted.

[22] The application is dismissed.

Order accordingly.

D.M. LINNANE, Vice President.

Hearing Details:
2005 14 December
2006 2 February
Released: 2 February 2006 / Appearances:
Mr D. O'Brien of Counsel, instructed by Moray and Agnew Solicitors for the Applicant.
Mr G. Long of Counsel, instructed by Q-Comp for the Respondent.

Government Printer, Queensland

ÓThe State of Queensland 2006.