Fed Consulting Services Pty Ltd v Ilija Gelo - [2013] ACTMC 3

FED CONSULTING SERVICES PTY LTD v ILIJA GELO

[2013] ACTMC 3 (26 March 2013)

WORKERS COMPENSATION – Workers Compensation Act 1951(ACT) s 36B – Territory or State of connection – meaning of “works in the employment” – whether any habitual or customary work-related activity sufficient to constitute employment connection – things done which are insubstantial or merely incidental to the employment may not support conclusion that the worker usually works in a jurisdiction for employment connection test.

Workers Compensation Act 1951 (ACT)

Avon Products Pty Ltd v Magrit Falls [2010] ACTCA 21
Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5
Hatzimanolis v ANI Corporation Limited [1992] HCA 21
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Taboritha Consultants Pty Ltd v Knight [2008] WADC 78

No. WC 272 of 2012

Magistrate: Morrison
Magistrates Court of the ACT

Date: 26 March 2013

IN THE MAGISTRATES COURT OF THE       )
  )          No. WC 272 of 2012
AUSTRALIAN CAPITAL TERRITORY            )

BETWEEN:FED CONSULTING PTY LTD
Applicant

AND:ILIJA GELO
Respondent

REASONS FOR DECISION

Magistrate:  Morrison
Date:   26 March 2013
Place:  Canberra

By agreement between the parties the question to be determined by me in these proceedings is limited to that of determining the Territory or State of connection for the purposes of section 36B of the Workers Compensation Act 1951.
It is not in dispute that the worker, Mr Ilija Gelo is both a director and an employee of the employer FED Constructions Pty Ltd. I refer to it as the Company in these reasons. Mr Gelo described himself as an owner of the company and I see from exhibit R4 that he holds one of two ordinary shares which have been issued. He said that the Company had been operating for 31 years.
Mr Gelo says that he personally holds a building licence and that the company also holds a building licence. As I understood his evidence, both he and the company in fact held 2 licences each – one issued in New South Wales and one issued in the ACT. There was no cross-examination of Mr Gelo as to the reason for him or the company holding a New South Wales licence, the costs involved in doing so or what if anything was required of him or the company by way of actually performing building work, holding insurance or indeed anything else in order to hold and maintain or renew such a licence in either New South Wales or the ACT.
Mr Gelo gave his evidence through an interpreter although it was apparent, unsurprisingly for a man in his situation, that he understood some of what was being asked of him without requiring the services of the interpreter.
My assessment of Mr Gelo’s honesty and reliability as a witness was to some extent made more difficult because of the involvement of the interpreter. I hasten to add that this is not a criticism of the interpreter who appeared to be competent and to have a good understanding of his role. At times the answers given by Mr Gelo were not properly responsive to the questions, but I was left with the overall impression that those occasions where the result of difficulties with the English language rather than deliberate evasiveness on his part. In the end result, I conclude that Mr Gelo was generally an honest witness. I was however also left with the impression that he was conscious of what evidence would support his position and what would not and that at times he was overstating the former and downplaying the latter.
Mr Gelo’s evidence was to be following effect. He said that in the five years prior to his injury (in February 2011) the company performed 100% of its work in the ACT. He did go on to say that for maybe a couple of days he visited a work site in New South Wales being a site at Ford Street in Queanbeyan. He said in his evidence that he was building a house there, but not working there – just going to check on the progress. He also said that his daughter and son-in-law had "that job of the work in Ford Street" and that from time to time he would go to see how they were progressing. He said that he had gone to the site approximately four or five or six times. I understood that to mean five or six times in total over the duration of work at that site and not five or six times before his injury. He said he could not remember when that job started although it is apparent that it was some time in 2010.
At the time of his injury, Mr Gelo was working on a job at Mawson in the ACT. He was asked where building materials and formwork for that job were stored. As I understood his evidence, it was that the company owned a container which was on the Mawson site in the ACT – Mr Gelo added that the company had a long time ago brought two houses in the area so that the container was already there. He said that other equipment came from a site at Red Hill in the ACT – that being the site of the job that finished before the Mawson job.
Mr Gelo said that in the five years before the date of his injury no materials were stored at this home in Queanbeyan. He said they went from site to site.
Mr Gelo said that he had a truck that he would use for the purposes of his work. It is not clear to me whether, in giving that evidence, he meant that the truck was owned by him or by the Company. He did say that it was a new three and a half tonne truck which was kept at his home in Queanbeyan.
Under cross-examination Mr Gelo agreed that on a normal working day he would get into his truck at his Queanbeyan home and drive to whatever job he had to be out on that day. He was asked about picking up supplies from Queanbeyan and the following exchange took place:
Question – and sometimes you would have to go to a place in Queanbeyan to pick up some supplies for a job wouldn't you?
Answer – maybe it had happened in the past but not any more.
Mr Stretton SC embarked on what I think was an attempt to ascertain what period of time was being referred to by Mr Gelo, but in his immediately following answers, Mr Gelo referred only to the construction workers picking things up and not him doing so himself.
Mr Stretton SC went on to ask Mr Gelo specifically about scaffolding required for jobs. Mr Gelo said that the scaffolding was stored at his father-in-law's place in Queanbeyan.
The following exchange then took place:
Question – And that's a place where you would go before you were injured from time to time to load scaffold onto your truck to take to the job where it was needed?
Answer – Most of the time my workers would have been doing that.
Question – But you did it too didn't you?
Answer – No I was not even lifting such heavy things myself.
Question – Did you drive the truck on which the scaffold was placed?
Answer – Sometimes yes but sometimes no.
Mr Gelo went on to say that the he did have an account to buy fuel at a Mobil outlet in Queanbeyan in NSW and that is where he fuelled his truck and had done so for a number of years.
There was significant cross-examination about work at the Ford Street address. As I understood the evidence as it unfolded before me, Mr Gelo says that the property at Ford Street was purchased by the company and his son-in-law, that building work was done by way of both renovating an existing house at the front of the property in which his daughter and son-in-law then lived as well as, subsequent to those renovations, the construction of some flats or units at the rear of the property.
Mr Gelo was referred to certain diary entries in April of 2010 referring to the Ford Street job. He said that the entry on 1 April 2010 indicated that work was done on the site on that day by the persons named in his diary. I infer his name was not one of them.
He was referred to entries on 5 and 6 April and said that on those days work was done at both the job site in Mawson and at the Ford Street address. He said that he worked at the former site and the other person named in the diary worked at Ford Street.
The following exchanges took place – in quoting these extracts from the transcript I have omitted some irrelevant parts, without I hope affecting the substance of the evidence given:
Question – In relation to the Ford Street job you were arranging the delivery of the necessary materials for the job?
Answer – No. Yes.
Question – In 2010 in relation to the Ford Street job you were organising the necessary materials for the work to be done, correct?
Answer – Not myself, but more of that was done by my son-in-law, Ron.
Question – I'm not suggesting you did all of it, I'm suggesting you did some of it?
Answer – Sometimes, yes, I did.
Question – And it was your overall responsibility as the licence holder to make sure that the Ford Street work was constructed properly is that right?
Answer – No. For that job, the houses were only being renovated and there was no need for me to have any licence, no.
Mr Gelo went on to explain that a builder’s licence was not required for such renovation work in New South Wales.
Mr Gelo was asked whether the work for his son in law and daughter was charged for and the transcript records his reply as being “No, not to me, no.” I have taken that to mean not by him, but he was not cross examined about how, if at all, any work done by him or by others or materials supplied for the renovation were dealt with, if at all, in the company’s books.
Later under cross-examination Mr Gelo said that in 2011, after his injury, the company did some work at a site at 9 Bungendore Road in Queanbeyan. He said that his son built four townhouses and that he had to go and supervise the work there because his licence had been used. He said that sometimes he would be at that job for two or three hours and then he would leave and come back. He was referred to a diary entry on 3 November 2011 indicating that he had spent five hours at the site. He started to respond by saying that he was not working but, as I understood the point he was trying to make, it was that he did not work physically for five hours rather than that he was not present for five hours.
It is apparent from the diary entries that by 9 September 2011 – that is after the date of the alleged injury - work had commenced on the townhouse construction phase of the Fort Street work. In fact an entry on 16 August 2011 indicates that Mr Gelo was present at the Ford Street site on that day for five hours apparently in connection with the pouring of some footings – that being work in connection with the townhouse construction.
Mr Gelo said that sometimes company cheques would be written by him sometimes by his wife and sometimes by their accountant. Sometimes it would be his son. He agreed that when it was his wife she would write the cheques at their home in Queanbeyan.
Mr Gelo also went on to say that the company had no work at present but was expecting a project in Queanbeyan to start. He agreed that on 7 February this year he had been to the site where he said his son was building units at Bungendore Road Queanbeyan to unload some piping.
In re-examination the following exchange took place:
Question – You were ask some questions about collecting materials from an address in Queanbeyan?
Answer – Yes.
Question – And you responded by saying that sometimes you would be involved in the collection of those materials, and sometimes your contractors were involved?
Answer – Yes. This material that was from the supplier for my sons units – that was supplier of the high street.
Question - Do you know in the year before you hurt yourself how many times you were involved in collecting materials at Queanbeyan?
Answer – I don't know.
Question – Was there any pattern to the time or times there…?
Answer – I was not there all the time. Maybe it's in my diary I don't know.
When the first of the questions above was asked, I got the impression that Mr Muller was attempting to direct Mr Gelo’s attention back to the general questions asked of him early in cross examination about collecting supplies or formwork on his way to jobsites in the morning. However, the answer given by Mr Gelo to that opening question appears to indicate that Mr Gelo was thinking about the question asked of him late in cross-examination about delivering pipes to the Bungendore Road jobsite in February of this year. Be that as it may, the subsequent question makes it clear that Mr Muller was speaking of the year before Mr Gelo hurt himself, and I think I can safely conclude that Mr Gelo recognised that in the answers which he gave, such that his answers to the last two questions are properly regarded as being directed to picking up supplies or materials in Queanbeyan in the period leading up to his alleged injury.
I draw the following conclusions and make the following findings on the basis of the evidence before me:
a.   Mr Gelo resides in Queanbeyan in NSW. He usually works in the ACT.
b.   The Company has been in operation for 31 years. I infer that its operations for most if not all of that time have been in the building industry. Mr Gelo and the Company each hold builders licences in both NSW and the ACT. It is apparent that it is not a large construction company. The Company did not have as an employee any licensed builder other than Mr Gelo. Its gross income in the 2012 year was reported as 1.26 million dollars. Its recent activities appear to involve taking on sequential building jobs.   It is apparent that the Company does not maintain either in NSW or the ACT any commercial or industrial premises either as a store yard or from which administrative and organisational activities are conducted. In the 5 years before the date of Mr Gelo’s alleged injury equipment and materials were moved from job site to job site as required.
c.   Mr Gelo’s work as an employee of the Company was that of a carpenter with additional duties by way of organising the work performed by others including subcontractors.
d.   Mr Gelo’s wife has received some payment of salary from the Company at some stage. She would sometimes write company cheques which I infer were for the payment of the Company’s trading accounts. When she did that it was from their home in Queanbeyan. The Company has held accounts with both the Commonwealth and ANZ banks and in both cases those accounts have been held at a Queanbeyan branch of those establishments. Sometimes company cheques were written by Mrs Gelo, sometimes by the company accountant, sometimes by Mr Gelo’s son and sometimes by Mr Gelo himself. The evidence does not establish how frequently Mr Gelo wrote cheques for the Company.
e.   Mr Gelo says that he was injured on 19 February 2011. The construction site at which Mr Gelo says he was injured is within the ACT. The Company’s job immediately before that one was also at a site within the ACT.
f.    The Company and a Mr Ron Smith who is Mr Gelo’s son-in-law owned property at Ford Street in Queanbeyan.
g.   Building work was carried out at that site by way of the renovation of an existing house and subsequently by way of the construction of 2 flats or units at the rear of the renovated house.
h.   The renovated house was one intended for occupation by Mr Gelo’s daughter and son-in-law. The evidence does not establish what if any business arrangements existed for the carrying out of the renovation work. Mr Gelo did not charge for anything done in connection with the renovation (T 24). I infer from Mr Gelo’s evidence that the Company did not charge for anything done by Mr Gelo in connection with the renovation.
i.    I infer that, whatever may have been the true nature of the arrangements for the renovation of the Ford street house to be occupied by the family members, the second phase of that work – the construction of the 2 units – was a formal building project carried on by the Company.
j.    The renovation phase of the work at the Ford Street address did not require that any person hold a building licence. Mr Gelo visited the building site on 5 or 6 occasions to check on progress of the work (T13). The renovation work did not impose any formal supervision requirement on him or, I infer, the Company, as the holder of a building licence because that work did not require a licence (T22).
k.   The evidence does not establish precisely when either phase of the construction work commenced or when or over what period any site visits by Mr Gelo took place.
l.    I infer that work at Ford Street had commenced by April of 2010 (T 21). Mr Gelo did, at some unspecified time in 2010, made some unspecified organisation of materials for the Ford Street work (T22). The evidence does not establish what he did, when or how often by way of organisation of materials. The second phase of work – that is the 2 flats at the rear of the property had commenced by at least 15 August 2011 (T29) which is after the date of Mr Gelo’s alleged injury. Mr Gelo spent 5 hours on site on that day fixing mesh for footings.
m. At some unspecified time during 2011 the Company carried out building work at Jerrabomberra in NSW. Mr Gelo was required to supervise that work by virtue of being the holder of the relevant building licence. His attendance at that site was required on at least the occasions when “the government inspector” went to the site. I infer that to be a reference to the occasions when building inspections are required in accordance with the issued building approval or the Building Code. The evidence does not establish how often those inspections took place or whether any attendance at that site took place before the date of Mr Gelo’s alleged injury.
n.   Mr Gelo spent 5 hours at that site on 3 November 2011 although not what he described as “physically working” for the whole of that period. He spent 1.5 hours at that site on 5 November 2011.
o.   Either the Company or Mr Gelo personally owned a truck which Mr Gelo used in connection with the Company’s business. The truck was garaged at Mr Gelo’s home in Queanbeyan and he drove it to and from work sites each day.
p.   At some unspecified time in the past Mr Gelo was involved in going to a place in Queanbeyan to pick up supplies for a job (T18). What Mr Gelo described as his workers picked up scaffolding, concrete reinforcing and things like that from NSW.
q.   The evidence does not establish how often Mr Gelo was involved in collecting any supplies or materials in Queanbeyan in the lead up to his alleged injury or whether there was any pattern to his involvement in any such activities.
r.    In the period of 1 or 2 years leading up to the date of the alleged injury, the Company owned builders scaffolding was stored at the property of Mr Gelo’s father-in-law at Wickerslack Lane in NSW. Sometimes Mr Gelo went to that address for the purpose of collecting scaffolding. What Mr Gelo described again as “his workers” would load the scaffolding when Mr Gelo went, and on some of those occasions Mr Gelo drove the truck. The evidence does not establish how often scaffolding was collected, how often Mr Gelo was present on such occasions or how often Mr Gelo drove the truck when he was at the address.
s.   Mr Gelo regularly fuels the truck at a Mobil outlet in Queanbeyan where the Company has an account, and has done so on what I infer to be a regular basis, for some years.
t.    Mr Gelo’s son is presently building units at No 9 Bungendore Road in Queanbeyan. On 7 February 2013 Mr Gelo went to that site to deliver some piping.
u.   At the time Mr Gelo gave his evidence the Company was expecting a project in Queanbeyan to start.
The test to be applied for the purposes of making a determination under section 36B has been the subject of analysis in Avon Products Pty Ltd v Falls [2010] ACTCA 21. The section incorporates what have been described as cascading provisions.
In so far as the first tier of those cascading provisions is concerned, that is, the question of where the worker usually works – I have also been referred to the decision of Justice Gray in Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 which deals with an earlier legislative provision, but which, it is accepted, remains relevant to the interpretation of the current one.

It is necessary to start with a consideration of the first part of the test - that is section 36B(3)(a). It is apparent that Mr Gelo usually works in the ACT. The first question to be determined by me is, therefore, whether or not the evidence establishes that he also usually works in New South Wales. If it does, then no one single Territory or State is identified under that provision and attention must be turned to the next of the cascading provisions.
Section 30(6) provides some guidance for deciding whether a worker usually works in a Territory or State. It provides that regard must be had to the following:
(i)        the worker's work history with the employer over the previous 12 months;
(ii)       the worker's proposed future working arrangements;
(iii)      the intentions of the worker and employer;
(iv)any period during which the worker worked in a Territory or State (a relevant place ) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place.
The period of 12 months for the purposes of subsection (i) above runs from 20 February 2010 to 19 February 2011. There is a lack of precision in the evidence about exactly when many of Mr Gelo’s activities took place. Mr Gelo made reference to his diary on several occasions in his oral testimony – in the sense of saying that he could not recall exact dates but that they would be in his diary – but he was not asked to locate them in his diary.
I have found it necessary to look very closely at the evidence to determine what has been established as having taken place in the 12 month period immediately before the date of the alleged injury.
The evidence does establish that at least the first phase of the Ford Street job – that is the house renovation for his daughter and son-in-law – was underway, during that time. That work however was not something requiring Mr Gelo’s or the Company’s building licence. Mr Gelo had no formal supervisory role, and the Company was not paid for any work. The evidence does not establish when or how often or why Mr Gelo attended the site during that period. As indicated earlier, Mr Gelo in his testimony in chief referred to visiting the Ford Street site 5 or 6 times but the context of his answer does not suggest that he meant 5 or 6 times during only the renovation phase at that address or before the date of his alleged injury. The highest point the evidence reaches from the Company’s point of view is when it was suggested to Mr Gelo that he did some of the organising of materials for the job and Mr Gelo replied that sometimes he did.
The evidence does not establish that any part of the second phase of the Ford Street job – i.e. the construction of the 2 flats at the rear of the renovated house - took place in the relevant 12 month period.
The concession by Mr Gelo under cross examination of having in the past in some unspecified time or times picked up supplies from Queanbeyan at the start of his day does not support an inference that it was done within the relevant 12 month period.
Similarly on the matter of the scaffolding, the evidence is limited to a concession by Mr Gelo that at some unspecified time in the past he sometimes drove a truck while workers loaded scaffolding from where it was stored at an address in NSW. The cross examination on that subject opened with a question about whether in the year or two before the alleged injury Mr Gelo or the Company owned scaffolding. Mr Gelo replied in the affirmative and the questioning moved on to where it was stored and if Mr Gelo was involved in its collection. The original question about ownership was framed in terms of the period of one or two years before the alleged injury, but the subsequent questions were not. It is by no means clear that Mr Gelo’s concession that he sometimes drove the truck was intended to mean that he did so during a period of 1 or 2 years before his alleged injury. In any event he was not asked to clarify what he may have meant by his reference to “sometimes”.
The evidence in relation to Mr Gelo’s involvement in what might be described as company administration is also very vague. His involvement appeared to be limited to sometimes signing cheques – at unspecified times – as one of several people who could do so.
I agree with the observations of Commissioner Herron in Taboritha Consultants Pty Ltd v Knight [2008] WADC 78 dealing with an equivalent provision in the Western Australian legislation to the effect that the direction to have regard to the worker’s history over the previous 12 months does not preclude me from having regard to a longer period of previous history. In the present circumstances however where the Company has been operating for a period of 31 years and, as I infer, that Mr Gelo has been working for it over that period, a concession that something happened at some unspecified time or times in the past is of little value in determining what is usual for present purposes.
Section 36B(6)(ii) and (iii) also directs me to have regard to the worker’s proposed future working arrangements and the intentions of the worker and the employer.
I understand the reference in subsection (ii) and (iii) above to be to the proposed future working arrangements and intentions at the time of the alleged injury. I have no evidence before me which deals expressly with those arrangements or with the intentions of either Mr Gelo or the Company at that time. It is apparent that the Company has subsequent to the date of Mr Gelo’s alleged injury taken on building projects in NSW and that Mr Gelo has done work in NSW in connection with them, but there is no evidence of whether what has taken place was in furtherance of proposed arrangements or intentions at the time of the alleged injury or has been decided on subsequently. I can and do infer that the holding of ACT building licences by both Mr Gelo and the Company demonstrates at least preparedness by the Company at the time of the alleged injury to engage in building work in the Territory and, also inferentially, preparedness to have such work undertaken or supervised by Mr Gelo, but that adds little to the Company’s argument.
Insofar as each of the activities to which I have just referred is concerned, the evidence does not establish that any of them took place with the necessary quality of being habitual or customary so as to justify a conclusion that Mr Gelo usually worked in his employment in NSW.
There is however in addition to those activities I have just mentioned, evidence which does establish that Mr Gelo regularly refuelled his work truck at a fuel outlet in Queanbeyan in NSW where the Company maintains an account.
The Company’s case is that this activity is habitual or customary and does establish that Mr Gelo usually works in NSW.
I was referred during addresses to the decisions in Avon Products Pty Ltd v Falls [2010] ACTCA 21 and Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 in relation to the meaning to be given to "usually works in the employment" where it appears in section 36B(3)(a). Those decisions focus on what is meant by "usually" in that context. The facts in this case, in particular the evidence about the vehicle refuelling, call for consideration of what is meant by the words "works in the employment" in that context.
I invited further submissions on the general point of principle after oral argument and for the sake of completeness, the relevant extracts of the invitation and written submissions received are attached to and form part of these reasons.
Part 4.2A of the Act was enacted as part of a national scheme for the purpose of determining "the Territory or State with which the employment of the worker is connected".
That connection is to be determined as provided for in Part 4.2A and it is section 36B which sets out the employment connection test.
The expression used in section 36B – "usually works in the employment" is not one which appears in the Act anywhere other than in part 4.2A.
A beneficial interpretation is given to the compensation triggering provisions of the Act – in particular section 31 which appears in Part 4.2 – for obvious reasons. To do otherwise would disentitle some workers to any compensation under the scheme.
There is however no equivalent basis for a beneficial interpretation approach to what constitutes "works in the employment" for the purposes of section 36B. A decision that a person does or does not usually work in a jurisdiction determines only the jurisdiction where a claim may be brought –not whether there is an entitlement to claim. The words used in the section should be given their ordinary meaning, having regard to the context – that context being a test to determine the Territory or State with which the employment of a worker is connected.
The circumstances of the hypothetical example of the trades apprentice posed in the invitation for further submissions provides an extreme but useful example. Mr Stretton SC for the Company submits that the apprentice in the example does in the circumstances suggested usually work in NSW, but to reach such a conclusion is to give that expression a wholly artificial meaning not mandated by the legislation nor required to meet its stated purposes.
If one accepts that in the hypothetical example the apprentice cannot properly be regarded as usually working in NSW, it follows as a matter of logic that, for the purposes of section 36B(3)(a) something more is required than that an activity be somehow employment-related and that it be habitual or customary.
In written submissions for the respondent worker, Mr Muller referred me to the decision of the High Court in Hatzimanolis v ANI Corporation Limited [1992] HCA 21. As I understand his submission, Mr Muller says that there must be a relevant activity in the course of employment to meet the test of connection for the purposes of section 36B. I cannot discern from the submission what features Mr Muller says that an activity must exhibit before it is relevant for the purpose.
The decision in Hatzimanolis dealt with an employee on a day off taking part in a recreational activity which had been arranged by his employer. The question for determination was whether the injured worker fell within the compensation triggering provisions of the legislation. A broad beneficial interpretation was appropriate. I found the decision is of limited use in the present circumstances.
In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, Dixon J recognised the distinction between what he described as "actual work" and other things done in the course of employment. He concluded that the test of whether any injury had been sustained in the course of employment ultimately depended upon whether the worker was doing something which he was "reasonably required, expected or authorised to do in order to carry out his actual duties". That test was again one used to determine whether an injured worker fell within the compensation triggering provisions of the legislation, and has, in any event, been subsequently relaxed. It does however highlight the distinction properly drawn between the broad concept of things done in the course of employment and the narrower one of actual work in the employment. The language used in the employment connection test in section 36B appears to be directed towards the latter rather than the former.
The interpretation of section 36B pressed for by the Company would have the test in subsection 36B(3)(a) read as if it referred to the Territory or State where the worker usually did anything in the course of his or her employment. As I have said that gives the words “usually works in the employment” an interpretation not corresponding to their ordinary meaning.
In the end result the conclusion I draw is that not everything done by a worker which might fall within the broad concept of being in the course of their employment will necessarily amount to “work in the employment” for the purposes of the employment connection test. Some things done by a worker may be so insubstantial or so merely incidental to their employment that, despite being customary or habitual, they cannot rationally support a conclusion that the worker usually works in his or her employment in that jurisdiction for the purposes of determining where the workers employment is connected.
In the present case I regard the evidence about Mr Gelo’s regular refuelling of the work truck in that way. It is clear that it was something done by him habitually or customarily even though the frequency was not explored in evidence. I infer that it was a work related activity. I do not accept that it was something carried out by him acting in his capacity as a director. In the absence of other evidence there is no reason to conclude that his duties as a director went beyond what would be required of him by the Corporations Law. It was no doubt necessary for the vehicle to be regularly re-fuelled and convenient for Mr Gelo to do so where he did in NSW. But doing so was clearly something which did not require his skills or expertise and which was merely incidental to his role as a carpenter and trades supervisor for the Company. I conclude for the reasons given that Mr Gelo’s conduct in refuelling his vehicle where he did despite being customary or habitual cannot of itself rationally support a conclusion that he usually works in his or her employment in NSW for the purposes of determining where his employment is connected.
I conclude therefore that the evidence before me identifies a single Territory or State in which Mr Gelo usually works in his employment – that being the ACT.
I certify that the preceding 60 paragraphs are a true copy of the Reasons for Decision of his Honour, Magistrate Morrison.
Associate: Gary Khoo
Date: 26 March 2013

Counsel for the applicant:      G Stretton SC
Solicitor for the applicant:     Sparke Helmore Lawyers
Counsel for the respondent:    D P Shillington
Solicitor for the respondent:   Slater & Gordon
Date of hearing: 14 February 2013
Date of Decision: 26 March 2013

MAGISTRATE’S REQUEST FOR FURTHER SUBMISSIONS

Submissions were made at the hearing as to the meaning to be given to the term “usually works” where it appears in section 36B(3). Those submissions concentrated on what is meant by “usual” in that context.

Magistrate Morrison would like to receive further submissions on what meaning is to be given to the reference to “works” in that expression.

In particular, submissions are invited as to the following:

Does any work related activity whatsoever, no matter how slight or remotely related to the employment, satisfy the test of “usually works” provided that it is carried out habitually or customarily?

Should the approach to what is meant by “works” in the expression “usually works” be the same as the very broad approach used to determine what is “...out of or in the course of the workers employment” for the purposes of section 31(1)? If so, why?

To the extent that it may be necessary to explain the point on which further submissions are sought, Magistrate Morrison poses the following questions:

a. What of the trades’ apprentice who is given the task of maintaining the smoko supplies and every fortnight dutifully buys the jar of Maxwell House at his corner shop in Queanbeyan on his way to his workplace in Canberra? Does his conscientious performance of that work related duty in NSW, ad that alone, mean that he usually works in NSW for the purpose of the Act?
b. What of the ACT employee who is told he can keep the company ute at home and use it to get to and from work home provided that he keeps it clean. Does the regular weekend car wash on the front lawn of his Jerrabomberra home mean that he usually works in NSW? Does that part of his daily drive to work from Jerrabomberra to the ACT border – by which he gets the company vehicle to work – mean that he usually works in NSW?

If the answer to question 1 above is “no”, what features must the activity exhibit (in addition to the requirement that it be habitual or customary) before the worker meets the test that he or she “usually works” in a jurisdiction?

5 What if any authority exists in relation to any of the above?

APPLICANT’S RESPONSE TO REQUEST FOR FURTHER SUBMISSIONS

RESPONDENT’S RESPONSE TO REQUEST FOR FURTHER SUBMISSIONS

4. APPLICANT’S RESPONSE TO RESPONDENT’S SUBMISSION