Benson v R P Leisk Pty Ltd - [2019] WADC 30

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BENSON -v- R P LEISK PTY LTD [2019] WADC 30
CORAM:   BOWDEN DCJ
HEARD:   1 MARCH 2019
DELIVERED          :   8 MARCH 2019
FILE NO/S:   CIVO 124 of 2018
BETWEEN:   PETER BENSON
Applicant
AND
R P LEISK PTY LTD
Respondent

Catchwords:

Worker's compensation jurisdiction - Employment connected with the State - Section 20 and s 23C Workers' Compensation and Injury Management Act 1981

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Determination pursuant to s 23C Workers' Compensation and Injury Management Act 1981 that Western Australia is a State within which the applicant's employment is connected

Representation:

Counsel:

Applicant	:	Mr L Jarman
Respondent	:	Mr A Lustig

Solicitors:

Applicant	:	Shine Lawyers
Respondent	:	Jackson McDonald

Case(s) referred to in decision(s):

Avon Products Pty Ltd v Falls (2009) ACTSC 141
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62
Ethnic Interpreters and Translators Pty Ltd v Sabri‑Matanagh [2015] WASCA 186
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Tamboritha Consultants v Knight [2008] WADC 78; (2008) 58 SR (WA) 291
Wainohu v Odeum Produce Pty Ltd [2017] WADC 146

BOWDEN DCJ:

Pursuant to s 23 of the Workers' Compensation and Injury Management Act 1981 (the Act) I am asked to determine whether in accordance with s 20 of the Act Western Australia is a State within which Mr Benson's employment is connected.

The law

20.Compensation not payable unless worker's employment connected with WA
…
(2)Compensation under this Act is only payable in respect of employment that is connected with this State.
(3)The fact that a worker is outside this State when the injury occurs does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(4)A worker's employment is connected with —
(a)the State in which the worker usually works in that employment; or
(b)if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c)if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

…
(6)If no State is identified by subsection (4) or (if applicable) (5), a worker's employment is connected with this State if —
(a)a worker is in this State when the injury occurs; and
(b)there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(7)In deciding whether a worker usually works in a State, regard must be had to —
(a)the worker's work history with the employer over the preceding period of 12 months; and
(b)the intentions of the worker and employer,

but regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

…
23C.Application to District Court to determine which State is connected with worker's employment
(1)If a claim for compensation has been made under this Act, a party to the claim may apply to the District Court for a determination of the question of which State is the State with which the worker's employment is connected.
(2)The District Court must determine an application under subsection (1) in accordance with section 20 and cause that determination to be entered in the records of the court.
(3)An application under subsection (1) is not to be made or heard if there is a determination that is to be recognised under section 23D.

The facts

The facts are not in dispute. They can be ascertained from the affidavits of Mr Benson of the 19 October 2018, Mr Myers of the 29 October 2018 and Mr Leisk of the 24 January 2019.
These affidavits established that Mr Benson completed his apprenticeship under the supervision of the respondent company between 1974 and 1979 in Western Australia.
From 1980 he worked on and off for the respondent for various periods of time and from October 2006 through to October 2015 was employed by the respondent as a plumber in Western Australia.
Mr Benson resided and worked in Western Australia from 1974 through to 2014 except in 1982 to 1983 when he was working in Sydney and 1990 to 1993 when he worked in Brisbane. He was not employed by the respondent during those periods.
In early 2014 Mr Benson was performing his duties as a plumber employed by the respondent and working in Acacia Prison. Mr Leisk who is the managing director of the respondent approached him and asked if he would work for the respondent in Jakarta supervising workers carrying out the plumbing in the new Australian Embassy then being built.
Mr Benson agreed.
It was anticipated that the work would take approximately three months. The respondent paid Mr Benson's airfares and organised and paid for his accommodation. Mr Benson remained employed by the respondent whilst in Indonesia.
As it is not uncommon in the construction industry the work was not completed within three months. Mr Benson was asked to stay for a longer period, basically until the job was finished and did so.
Whilst in Indonesia Mr Leisk, on at least three or four occasions, went to Indonesia to check the work and Mr Benson on occasions reported to Mr Leisk while the latter was in Australia.
Whilst working in Indonesia Mr Benson arranged with one of his friends to stay in his house rent free however the friend paid all the utilities associated with those premises.
Mr Benson intended to return to Western Australia when the Jakarta job was complete and continue his employment with the respondent in Western Australia.
Regrettably Mr Benson contracted dengue fever when he had been in Indonesia for around about 11 months.
It is not in dispute that the registered office and the head office of the respondent is in Western Australia and Mr Leisk the managing director resides in Western Australia.

The respondent's submissions

The respondent says s 20 should not be used to determine whether a worker's employment is connected with a particular State in relation to work performed overseas but confined to determining which State a worker's employment is connected with in relation to work performed in Australia.
The respondent says this is apparent from the objectives set out in the explanatory memorandum (Workers' Compensation Rehabilitation Amendment (Cross Border) Bill 2014) and the 'extract from Hansard (Council – Wednesday, 29 September 2004)' and from the fact that s 20 replaced s 15 which dealt with the framework to assess worker's compensation entitlements for workers injured overseas.
There is no doubt that explanatory memorandum and Hansard debates can be considered in statutory interpretation and the courts must consider the context, object and purpose of the legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273.
Section 18 of the Interpretation Act also obliges the court to construe legislation in a manner which promotes the purpose or object underlying the legislation.
Notwithstanding this the legislative history and extrinsic materials cannot displace the clear meaning of the statutory text. The statutory text and not the non-statutory language seeking to explain the statutory text is of paramount significance: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503; Wainohu v Odeum Produce Pty Ltd [2017] WADC 146 (McCann DCJ); Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62 (Beech J) [546].
Under s 20(2) of the Act compensation is only payable in respect of employment that is connected with the State.
Section 20(3) provides the fact that the worker is outside the State when the injury occurs does not prevent compensation being payable under this Act in respect of employment that is connected with the State.
If the worker's employment is not connected with this State then compensation under the Act would not be payable irrespective of whether the worker was working in another State or overseas. If the worker's employment is connected with this State then compensation under the Act would be payable irrespective of whether the worker was working in another State or overseas. The statutory test is whether the worker's employment is connected with the State.
Section 20 of the Act provides a cascading series of steps or tests for determining whether the worker's employment is connected with the State under consideration. It is only necessary to consider each step or test if the use of the earlier test does not result in one State being identified: Ethnic Interpreters and Translators Pty Ltd v Sabri‑Matanagh [2015] WASCA 186 [52].
The first test in s 20(4)(a) relates to the State 'in which the worker usually works in that employment'.
In deciding whether the worker usually works in a State regard must be had to:
(a)the worker's work history with the employer over the preceding period of 12 months; and
(b)the intentions of the worker and the employer,
but regard must not be held to any temporary arrangement under which the worker works in a State or territory for a period of not longer than six months.
The issue raised by s 20(4)(a) is not where the worker works the most the question is whether there is a State in which the worker usually works: Tamboritha Consultants v Knight [2008] WADC 78; (2008) 58 SR (WA) 291; Avon Products Pty Ltd v Falls (2009) ACTSC 141.
For the purposes of s 20 the expression usually works means where the worker habitually or customarily works or where he works in a regular manner. Tamboritha Consultants v Knight.
The court is required to consider and take into account the 12 month work history of the worker and give it such weight as the court determines but a court is not limited to that 12 month period in considering in which State the worker usually worked and can have regard to the greater work history particularly in considering what were the intentions of both the worker and the respondent. The court has the discretion as to what work history they should consider beyond the 12 month period: Tamboritha Consultants v Knight.
Pursuant to s 20(7)(b) regard must also be had to the intention of the worker and the employer. That section prohibits the court from having regard to any temporary arrangement under which the worker works in a State for a period of not longer than six months.
In this case Mr Benson had been working overseas for some 11 months before the incident occurred.
Clearly the intent of Mr Benson was that he would return to Western Australia when the Embassy was complete. His house was here, he worked in Western Australia almost exclusively throughout his working career.
Mr Benson intention was to continue working in Western Australia after the Embassy was complete. Mr Benson's work history clearly establishes that he habitually or customarily works or works in a regular manner in the State of Western Australia. Certainly there had been occasions where he has been in Sydney, Queensland or Indonesia but a fair assessment of the facts is that he habitually or customarily or works in a regular manner in this State. He was an apprentice in Western Australia and usually works in his employment in Western Australia as is demonstrated by his work history and residence in this State.
I find that Mr Benson usually works in his employment in the State of Western Australia.
If I be wrong in this regard and it cannot be determined where Mr Benson usually works I turn to consider the next test which is contained in s 20(4)(b) and ask the State in which Mr Benson is usually based for the purposes of his employment.
Clearly this question involves considering whether the worker is usually based for the purpose of that employment. It is not necessarily the place where he lives.
I respectfully adopt Commissioner Herron's reasons in Tamboritha Consultants v Knight that the expression usually based means generally speaking. This involves looking, inter alia, at the work location specified in the contract, where Mr Benson routinely attends to receive directions, the location he reports to in relation to the work, the location from which his wages are paid, and where the contract was entered into.
In this case the agreement for Mr Benson to work in Indonesia was entered into in Western Australia and he is paid in accordance with conditions that were entered into in Western Australia, he is paid from Western Australia, he keeps in contact with the managing director of the respondent who is based in Western Australia. Mr Benson's work in Indonesia is not to be considered as a separate employment contract, it is a continuation of his normal employment by the respondent albeit in a different location.
In my view it can be fairly said that Mr Benson is usually based for the purposes of his employment in Western Australia. Generally speaking he is based for the purposes of his employment in Western Australia.
If I am wrong in this regard and it cannot be determined where Mr Benson is usually based for the purposes of his employment I turn to consider the third question that is in which State is the employer's principal place of business in Australia located.
The place in which an employer's principal place of business in Australia is located is the State where the employer's business activities are managed or controlled is located: Ethnic Interpreters and Translators Pty Ltd v Sabri‑Matanagh.
In this case there is no doubt that is Western Australia. The respondent's business is registered in Western Australia, its principal activities are in Western Australia. Its managing director is based in Western Australia, its head office is located in Western Australia.
In my view, it is appropriate to make the declaration that Western Australia is the State that the applicant's employment is connected with in June 2015 and direct that that be entered into the records of the court pursuant to s 23C of the Workers' Compensation and Injury Management Act 1981 (WA).
There is liberty to apply in respect of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Court Officer
15 MARCH 2019