Gabriel Tapia v Woolworths Limited
[2015] ACTIC 2
•13 November 2015
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | GABRIEL TAPIA v WOOLWORTHS LIMITED |
Citation: | [2015] ACTIC 2 |
Hearing Date: | 9 November 2015 |
DecisionDate: | 13 November 2015 |
Before: | Industrial Magistrate Walker |
Category: | Decision |
Catchwords: | Workers Compensation – Territory or State of connection – “usually works”, “usual base”, “principal place of business” - state of connection for worker is NSW. |
Legislation Cited: | Workers Compensation Act 1951(ACT) ss 36B, 36B(3), 36B(6), 36B(7). |
Cases Cited: | Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1 Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 P J Elliot Holdings Pty Ltd v Baker and Anor [2014] ACTSC 308 |
Parties: | Gabriel Tapia (Applicant) Woolworths Limited ABN 88 000 014 675 (Respondent) |
Representation: | Counsel Mr Wayne Sharwood (Applicant) Mr Andrew Muller (Respondent) |
| Solicitors Baker Deane & Nutt Solicitors (Applicant) King & Wood Mallesons (Respondent) | |
File Number: | WC 210 of 2015 |
INDUSTRIAL MAGISTRATE WALKER
The Applicant worker an employee of Woolworths Limited (“Woolworths”) makes a claim for compensation for an injury which was suffered on 12 April 2013. The issue in dispute is the proper state or territory of connection.
The agreed facts extracted from a document tendered at the hearing, and upon which the Court relies, are as follows:
The Applicant commenced employment with the Respondent on 19 March 2012 as a Duty Manager.
The terms and conditions of the Applicant’s employment in the position of Duty Manager were set out in a letter of offer dated 26 March 2012 and an attached Contract of Employment.
During the period from 19 March 2012 until the Applicant commenced his position as a Retail Operations Graduate, he did not work at any store location other than the Canberra Airport Supermarket.
On 17 January 2013 the Applicant was offered a new position as a Retail Operations Graduate.
The terms and conditions of the Applicant’s employment in that position were set out in a letter of offer dated 17 January 2013 and an attached Contract of Employment.
The Applicant commenced in the Retail Operations Graduate Program (“the Program”) on 11 February 2013.
The Program was to be conducted over a two year period and was divided into three phases. The expectation for successful graduates was appointment as a Team or Assistant Store Manager with the possibility for an exceptional graduate to be placed immediately as a Store Manager.
During the Program, the Applicant received instructions concerning his rotations from an Area Manager, Mr Darren Storer, and the NSW/ACT Human Resources Specialist Mr Paul Kelly.
Mr Rod Needham, the Store Manager for the Canberra Airport store, was appointed as the Applicant’s mentor for the purposes of the Program.
Between 11 February 2013 and 11 April 2013, the Applicant completed the following rotations in order:
Deli – two weeks at Canberra Airport store, in the ACT;
Bakery – two weeks at Queanbeyan store, in NSW;
Produce – two weeks at Queanbeyan store, in NSW;
Meat – two weeks at Queanbeyan store, in NSW; and
Seafood – two weeks at Mawson, in the ACT.
On 12 April 2013, the Applicant commenced another rotation with Long-life at the Queanbeyan store and on that same date, suffered an injury to his back.
On 15 April 2013 the Applicant completed a worker’s compensation claim form. His claim was initially accepted by the Respondent’s NSW worker’s compensation insurer, and the Applicant received payments of statutory benefits under the NSW workers compensation legislation.
Following the injury, the Applicant discontinued the Long-life rotation at the Queanbeyan store, and then completed an Office rotation, Front-end rotation and Long-life rotation at the Gungahlin store.
During the period 29 July 2013 to 17 November 2014, the Applicant completed a number of further rotations at various store locations; at Queanbeyan, Jerrabomberra and Jindabyne in NSW; as well as Weston Creek, Conder, Calwell, Kambah, Woden and Mawson in the ACT. Each placement was for approximately one to two months
The Applicant completed the Program in February 2015.
On 17 February 2015 the Respondent offered the Applicant a new position as a Customer Service Team Manager at the Calwell store in the ACT. On 19 February 2015 the Applicant accepted the offer of the Customer Service Team Manager position.
In addition to the written agreed facts, the Applicant conceded that the employer’s principal place of business is NSW.
The Applicant gave oral evidence as did Mr Paul Kelly who, at the relevant time, was a Human Resource Manager for Woolworths in the local area. The following facts are drawn from their evidence and documents tendered as attachments to the agreed facts. They are uncontentious and are relied upon for this determination.
When the worker was employed initially as a Duty Manager with Woolworths from 19 March 2012, the contract specified that the worker would initially be based at the Canberra Airport Supermarket but indicated that he may be required to work at other locations from time to time although he in fact worked at the Canberra Airport Supermarket throughout this contract. He was there for approximately eleven months before the new contract began.
The second contract specified that the worker would initially be based at Yennora Administration Centre (which is in NSW) although again, he was advised that he may be required to work at other locations from time to time. The worker said that he understood that this meant that alternative locations were subject to his agreement.
At the start of the new contract, the worker did some brief initial training at Yennora.
During the graduate program, the worker reported to the graduate program manager, Ms Cassandra Piccimin, based in Yennora, and the area manager, Mr Darren Storer, and the human resource manager, Mr Paul Kelly, both of whom were based in Queanbeyan. He had a mentor, being the store manager at Canberra Airport during the program.
Also during the Program, the worker was paid from the head office centre rather than from a store as he had been when he had been working at the Canberra Airport Store. In fact it was usual for a person employed at a particular store to be paid from that centre.
Following completion of the Program, the worker was offered employment at Calwell in the ACT. Due to physical limitations he has not taken up that position and has been employed again at the Canberra Airport Store.
The worker was asked in cross-examination whether he was aware that following completion of the Program he could be offered a position anywhere in Australia. He responded that he had hoped for a position local to the ACT and that he would not be prepared to take a position in Queanbeyan or Jerrabomberra as it would take 55 minutes to drive to these locations. He conceded that some ACT locations, such as Conder and Calwell would require similar drive times as to Queanbeyan. He stated in respect to the offer of a position at Calwell that he was told that it was that location “or leave”, albeit that for medical reasons he has not yet commenced there. I infer from this that although the worker considered that he could not be required to work at a particular location, he was aware that ultimately his choice was to take what was offered to him or relinquish his employment.
Mr Paul Kelly confirmed that he was involved in recruitment of the worker for the Program. He stated the program was based in Yennora, was run and funded from there. The worker was the only person of about 15 on the program who was located in the ACT. Placement of the worker during the program was decided between Mr Storer and Mr Kelly with Mr Kelly advising the worker where he was required. Leave would be approved by both Mr Kelly and Ms Piccimin.
The Law
Turning to the application of the legislation to these facts, the issue of state of connection is to be determined having regard to section 36B of the Workers Compensation Act 1951(ACT) (“the Act”). This section sets out a three stage stepwise test for determining the question.
Subsection 36B(3) provides that:
(3) A worker’s employment is connected with—
(a)the Territory or State where the worker usually works in the employment; or
(b)if no Territory or State, or no single Territory or State, is identified by paragraph (a)—the Territory or State where the worker is usually based for the purposes of the employment; or
(c)if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b)—the Territory or State where the employer’s principal place of business in Australia is located.
In deciding whether a worker usually works in a Territory or State, subsection 36B(6) requires the Court to have regard to a number of factors as follows:
(a)
(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; but
(b)regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months.
In the event that no single usual place of employment can be identified, the Court is required to have regard to subsection 36B(7) in determining the second limb of the test. It provides that:
(7) In deciding whether a worker is usually based in a Territory or State regard must be had to the following:
(a)if the employer provides a place from which the worker is expected to operate—that place;
(b)if a place is stated in the worker’s contract of employment with the employer—that place;
(c)the place from which the worker routinely receives day-to-day instructions from the employer;
(d)the place where the worker attends to collect material for the purposes of their employment;
(e)the place where the worker reports for administrative, human resource and other issues related to the workers’ employment with the employer.
Submissions
The applicant submits that looking at the previous 12 months, the worker usually worked in the ACT. The short period spent in NSW under the new contract is not be considered as, according to the Applicant it falls within the exception at subsection 36B(6)(b) as a temporary arrangement for a period of not longer than six months. As to the proposed future working arrangements and intentions, the Applicant emphasises the fact that the worker wished to work in the ACT and, although the employer could offer work elsewhere, following completion of the Program with its various short-term placements, work was in fact offered in the ACT.
The Respondent submits that the Applicant’s approach fails to have regard to the application of subsection 36B(6)(a) in that it relies on subparagraph (i), that is the workers work history over the last 12 months, to the exclusion of subparagraphs (ii) and (iii). The worker was offered a new position in February 2013 in which it is clear that he would usually be based in more than one location, and that from that point he was no longer a worker usually working in the ACT but a worker usually working in both the ACT and NSW. On this basis, the Respondent submits that there was no usual place of work and the Court is therefore required to have regard to the second limb of the test being where the worker is usually based. The Respondent directed the Court to the decision of Justice Burns in Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1.
Neither party made submissions in relation to the operation of subsection 36B(7).
Consideration
Usually Works
Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5; is the seminal authority in the ACT on this issue. The case has been considered more recently by Justice Burns in P J Elliot Holdings Pty Ltd v Baker and Anor [2014] ACTSC 308 in which His Honour observed at paragraph 30:
30. The test of whether a worker “usually works” in a particular State or Territory, as opposed to whether he or she usually works in more than one State or Territory, as posited by s 7A is not quantitative in the sense that it does not depend on establishing that the worker undertook any particular proportion of his or her duties in that State or Territory. It also seems clear that the test as posited by s 36B (3) (a) is not satisfied by simple regularity of work in a particular State or Territory. For example, a person employed to carry goods from Queanbeyan to Braidwood in NSW each day via the Kings Highway will travel through the ACT for a very short period on each such journey, but it could hardly be said that he or she usually worked in the ACT in their employment as a truck driver simply because they spent a few minutes each day traversing the outer rural border of the Territory. The test found in s 36B(3)(a) of the Act is incapable of precise exposition, at least as it was interpreted in Hanns v Greyhound Pioneer Australia Ltd and Ferguson v WorkCover Queensland. In some cases the test as espoused in those cases will provide an obvious answer, but in many cases it will not. A court required to apply the test in one of these latter cases must apply its judgment to the facts of the particular case, which introduces an element of unpredictability which is regrettable.
I echo His Honour’s sentiment.
Burns J considered the concept of “usual base” in Fisher v Tony Innaimo Transport Pty Ltd[2015] ACTSC 1 and highlighted a number of factors which may point to a particular location being a worker’s base, including start and finish points, where equipment and merchandise is collected from and where direction is given from. His Honour made no reference to subsection 36B(7).
The factual circumstances of this case are somewhat complicated by the fact that the worker change his contractual relationship with Woolworths part way through his employment with them. He spent 11 months as an employee in a Canberra store, working, paid and managed solely at that location on an on-going contract. He then entered in to a new agreement with very different contractual conditions. They were that he was initially based in NSW at Yennora, that he was managed at three levels in NSW and that he underwent a number of placements in the ACT and in NSW, where he was at the time of injury. Whilst the contract did not specify that placements were only in NSW and the ACT for this worker on the graduate program, those were in fact the locations, consistent with the worker’s residence within that region.
In the previous 12 months, the worker had worked the majority of the time in the ACT but also had significant periods of work in NSW. Under his second contract of employment, he had temporary arrangements for less than six months for work in both the ACT and NSW which, pursuant to subsection 36B(6)(b), must not be taken in to account. That still leaves the majority of the worker’s employment having been performed in the ACT in the preceding 12 months.
The employment history, however, is not the sole criteria for consideration of where a worker usually works. The parties’ intentions are also to be considered. The initial “base” for the first contract was the Canberra Airport Supermarket and for the second, the Yennora Administration Centre. There was no suggestion that the worker would operate on an ongoing basis from Yennora as an administration centre, given that he was undertaking training for store-based work. Both employment contracts specify that the worker “may be required to work at other locations from time to time”. In the first offer of employment contract, the worker was congratulated on his new role with “Woolworths Supermarkets”; in the second, it is with “NSW/ACT Supermarkets”. Had the first contract of employment continued as it was operating then, even if the worker had been temporarily transferred to Queanbeyan, it would have been clear that the ACT remained his usual place of work. However, arrangements under the new contract are significant to this determination.
The worker gave evidence that he intended to work in the ACT in the future and that he would leave his employment with Woolworths rather than travel to NSW because of the travel time involved. However, that was his plan after completion of the Program. Clearly during it, he both intended, as is evidenced by accepting the employment contract providing for it, and in fact did, work at other locations as required in the surrounding region, including three different locations in NSW. I infer from that that what would eventuate at the end of the program depended on various factors including his successful completion of the program and the employer’s requirements at that time.
The employer had kept its options open through the provision in the employment contract allowing direction to work at other locations. Given that the contract was specifically stated as being with ACT/NSW Supermarkets, I infer that those other locations would be within that region, according to requirements.
Sub-paragraph 36B(6)(a)(iv) operates only to require that the Court consider any period worked in another jurisdiction, even though workers compensation may be payable under the laws of that state. As the worker was paid under the NSW workers compensation scheme, this paragraph operates to require the Court to nonetheless consider the employment performed in NSW. However, as this was on a temporary basis of less than 6 months, this subsection is relevant as to evidence of the parties’ intentions but not for determining the 12 month work history.
In consideration of the above factors, as at the date of his injury, I identify that the worker “usually worked” in both the ACT and NSW.
Turning to the second limb of the test, and having regard to the factors in subsection 36B(7),
(a)-the employer provided various places from which the worker was expected to operate, being the various stores in the ACT and NSW and the Yennora Administration Centre;
(b)-the worker's contract of employment with the employer in operation at the date of injury stated that the initial base was Yennora, but that he may be required to work at other locations, and indeed he was;
(c)-the place from which the worker routinely received day-to-day instructions from the employer included NSW, being from his various graduate program managers and, I infer, from each of the local store or department managers from whom he was learning at stores in the ACT and NSW;
(d)-the place where the worker attended to collect material for the purposes of his employment is not a factor as to which there was evidence;
(e)-the place where the worker reported for administrative, human resource and other issues related to the workers' employment with the employer included Yennora and his managers in NSW but also the various stores in NSW and the ACT and his mentor in the ACT.
It is clear that there is no single “usual base” for this worker as at the date of his injury.
This finding leads to a consideration of the third limb of the test, that is the location of the employer’s principal place of business. Given that Woolworths is a national corporation whose operations cross state and territory borders, it appears that where a worker is employed across those borders, as this worker was at the time of his injury, this is just the type of situation that the third limb of the test is designed to address absent a clear finding under the first or second limbs. It is conceded by the worker that Woolworths’ principal place of business is NSW.
The state of connection for this worker is NSW.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Decision of Her Honour Industrial Magistrate Walker. Associate: Jessica Nemaric Date: 7 December 2015 |
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