I.C. Formwork Services Pty Limited v Moir
[2023] ACTCA 31
•19 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | I.C. Formwork Services Pty Limited v Moir |
Citation: | [2023] ACTCA 31 |
Hearing Date: | 14 November 2022 |
Decision Date: | 19 July 2023 |
Before: | McCallum CJ, Loukas-Karlsson and O’Sullivan JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEALS – WORKERS COMPENSATION – Substantive law applicable to determine the claim for damages – “State or Territory of connection” – application of employment connection test in s 36B(3) of the Workers Compensation Act 1951 (ACT) – whether the worker was “usually based” in the ACT |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1521 Legislation Act 2001 (ACT) ss 139, 141 Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT) Workers Compensation Act 1951 (ACT) pt 4.2A; ss 36B, 36C, 182D |
Cases Cited: | Avon Products Pty Ltd v Falls [2010] ACTCA 21; 5 ACTLR 34 Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44 Moir v I.C. Formwork Services Pty Limited (No 2) [2022] ACTSC 53 Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, 21 October 2014, Legislative Assembly, 3354-5 (Mick Gentleman, Minister) |
Parties: | I.C. Formwork Services Pty Limited (ACN 008 591 811) ( Appellant) Nigel James Moir ( Respondent) |
Representation: | Counsel A Muller ( Appellant) C Erskine SC with J Sainty ( Respondent) |
| Solicitors MinterEllison ( Appellant) Blumers Personal Injury Lawyers ( Respondent) | |
File Number: | ACTCA 18 of 2022 |
Decision under appeal: | Court: Supreme Court Before: Elkaim J Date of Decision: 24 March 2022 Case Title: Moir v I.C. Formwork Services Pty Limited (No 2) Citation: [2022] ACTSC 53 |
THE COURT:
1․Nigel Moir was employed by the appellant, I.C. Formwork Pty Limited, as a formwork carpenter. In the nature of the construction industry, Mr Moir’s work took him to various building sites which, unfortunately for him (as it turned out), took in more than one jurisdiction, being predominantly in the Australian Capital Territory (ACT) but also in New South Wales (NSW).
2․In May 2015, Mr Moir injured his back while working at a building site in Bawley Point in NSW. He commenced proceedings for common law damages in the ACT Supreme Court. I.C. Formwork Pty Limited denied Mr Moir’s entitlement to have his claim determined according to the substantive law of the ACT.
3․The substantive law to be applied in such a claim is governed by s 182D of the Workers Compensation Act 1951 (ACT), which provides that the question whether a damages claim can be made in relation to a work-related injury and, if so, the determination of the claim are governed by the “Territory or State of connection”. The Territory or State of connection is to be determined in accordance with the provisions of pt 4.2A of the Workers Compensation Act. Section 36C in pt 4.2A provides that, if an issue as to the Territory or State of connection arises in proceedings in a court, the court must make that determination in accordance with the “employment connection test” in s 36B.
4․Mr Moir contends that the proper application of the employment connection test produces the answer that the Territory or State of connection for his claim is the ACT. I.C. Formwork contends that the Territory or State of connection is NSW.
Circumstances in which the present appeal is brought
5․Mr Moir’s attempts to have that issue determined have not gone smoothly. In March 2019, he brought an application seeking early resolution of the issue in his favour.
6․In order to understand the relief sought by that application, it is necessary to explain how the employment connection test works. The test consists of a cascading series of questions starting with the three-stage test in s 36B(3) as follows:
(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.
7․It may be noted that an answer is not reached unless a single Territory or State is identified. If the answer is that the worker usually works in two jurisdictions, or that there is no jurisdiction where the worker usually works, it is necessary to move on to the second stage of the test. If the answer is that the worker is usually based in two jurisdictions, or that there is no jurisdiction where the worker is usually based, it is necessary to move on to the third stage of the test.
8․As noted in Mr Moir’s written submissions, the employment connection test was introduced in 2003 to give effect in the ACT to a nationally agreed legislative scheme for determining which workers compensation legislation applied to which workers.
9․The legislation in its present form is the product of amendments made in 2014 introduced by the Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT) to incorporate in the statutory test aspects of a protocol that had previously been made by regulation. Mr Moir’s written submissions noted the Minister’s explanation when the 2014 amendments were debated that those amendments would:
[R]emedy a situation that has developed where, in finding out that a worker works in more than one state or territory, decision-makers are concluding that there is no state or territory in which the worker usually works or is usually based. Decision-makers are, instead, defaulting straight to the third option: the employer's principal place of business.
(Australian Capital Territory, Parliamentary Debates, 21 October 2014, Legislative Assembly, 3354-5 (Mick Gentleman, Minister))
10․Those remarks may be considered in determining the purpose of the amendments which in turn inform its meaning: ss 139 and 141 of the Legislation Act 2001 (ACT).
11․Mr Moir’s application sought to have the employment connection test applied by seeking a series of “findings” framed by reference to the three stages of the test; that is, he sought a finding that he “usually works” in the ACT, alternatively that he is “usually based” in the ACT and alternatively that I.C. Formwork’s principal place of business is the ACT.
12․The application came before Elkaim J on 30 August 2019 and was determined that day in an ex tempore judgment: Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246. His Honour considered that the issue could be determined “within the confines of s 36B(3)(a)”; that is, by reference to the “usually works” test: at [24]. His Honour's judgment then recorded the following determination at [34]:
I make the following declaration:
(a) The Court finds that the plaintiff usually worked in the Australian Capital Territory and therefore the common law workers compensation claim arising out of the negligence of the defendant should be determined by the law of the Australian Capital Territory.
(b) The defendant is to pay the plaintiff's costs of the application.
13․I.C. Formwork successfully appealed from that decision. The principal judgment on appeal was given by Mossop J, with Loukas-Karlsson and Collier JJ agreeing at [85] and [86]: I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44. His Honour noted some procedural difficulties with the manner in which the application had been brought forward and determined at first instance: at [13]-[28]. For the reasons there explained, the appropriate process for resolving the question raised on the pleadings as to which substantive law was applicable was to bring forward an application for the determination of a separate question, as allowed under r 1521 of the Court Procedures Rules 2006 (ACT). That had not been done. The application determined by Elkaim J sought “findings” but, absent an order for the determination of a separate question, any findings made would not finally determine any issue joined on the pleadings.
14․Leaving aside the procedure adopted, the Court of Appeal held that Elkaim J erred in making the declaration that he did because the correct conclusion was that Mr Moir “usually worked” in both the ACT and NSW: at [67]-[68].
15․The evidence established that, over the entire period of his employment with I.C. Formwork, Mr Moir had mostly worked in the ACT. Justice Elkaim made a number of findings on that issue at [28]-[29] which have not been challenged. They included the fact that the plaintiff had “continued employment with the defendant over many years in which he invariably worked in the ACT”; that “his usual place of work for the defendant, taken in the context of his employment with the defendant, must lead to a conclusion that his usual place of work was the ACT”; that it was not a case where Mr Moir “had only worked for the defendant for one or two years or if he had established some sort of permanent residency, or intention to reside, at Bawley Point” and that in fact his intention was “actually quite the opposite” in that “he undertook the work at Bawley Point to meet his current financial circumstances and with the intent that he would return to work in the ACT as soon as practicable and certainly when the demands of his family required the return”.
16․However, during the 12 months leading up to the accident, Mr Moir had worked for 35 weeks at the Bawley Point site in NSW. That was significant for the purposes of the “usually works” test.
17․Section 36B identifies mandatory considerations for both the first and second stages of the employment connection test. In determining the first stage, the Court must have regard to the factors listed in s 36B(6). In determining the second stage, the Court must have regard to the factors listed in s 36B(7). One of the mandatory considerations in s 36B(6) specifies a time frame (“the worker’s work history with the employer over the previous 12 months”) whereas none of the mandatory considerations in s 36B(7) are limited as to time.
18․The Court of Appeal held at [49] that, for the purpose of the first stage, s 36B(6) “compels regard to be had to the 12 month period prior to the date in question and, directly or indirectly, requires that period to be the focus of the enquiry as to where the worker usually works”. The Court noted that Elkaim J's approach to the issue was “temporally unconstrained”, meaning that his Honour had regard to the whole of Mr Moir's employment with I.C. Formwork instead of just the 12 months leading up to the accident: at [54]. The Court held, that, in taking that approach to the first stage of the test, Elkaim J erred and that his Honour should have found that Mr Moir usually worked in both jurisdictions: at [67].
19․In disposing of the appeal, as the only matter before Elkaim J was “the (misconceived) Application in Proceeding seeking a ‘finding’ that the ACT was the Territory or State of connection on various alternative bases”, the Court took the view that it should “go no further than necessary for the court to dispose of the appeal”: at [82]-[83]. Accordingly, the Court simply set aside the orders made by Elkaim J and instead dismissed Mr Moir's application. In result, following the appeal, only the first stage of the three-stage test in s 36B(3) had been determined.
20․Mr Moir then filed an application under r 1521 seeking the determination of separate questions which were answered by Elkaim J in a further judgment given on 24 March 2022: Moir v I.C. Formwork Services Pty Limited (No 2) [2022] ACTSC 53. Justice Elkaim answered the questions as follows at [61]:
Question 1.1: Pursuant to section 36B(3)(b) of the Workers Compensation Act 1951 (ACT), in which Territory or State was the plaintiff usually based for the purposes of his employment?
Answer: The Australian Capital Territory.
Question 1.2: If no Territory or State or no single Territory or State is identified, pursuant to section 36B(3)(c) of the Workers Compensation Act1951 (ACT), where was the defendant’s principal place of business located?
Answer: Not relevant, having regard to the answer to the previous question. Had the question been relevant, the answer would have been the Australian Capital Territory.
Question 1.3: Pursuant to s 182D of the Workers Compensation Act 1951 (ACT), what is the substantive law to be applied to the plaintiff’s claim for damages?
Answer: The Australian Capital Territory
21․I.C. Formwork appeals from the whole of that decision.
Where was Mr Moir usually based for the purposes of his employment?
22․Question 1.1 is concerned with the second stage of the three-stage test, namely, where Mr Moir was “usually based”. As already noted, in determining that question, the primary judge was required to have regard to the mandatory considerations listed in s 36B(7).
23․The primary judge noted competing submissions as to the frame of reference for determination of the second stage of the test. Mr Moir submitted that, unlike s 36B(6), s 36B(7) imposes no requirement to focus on the 12 months before the injury and that:
[A] wider time frame could be examined, in particular the whole of the period of employment of the plaintiff by the defendant. If this was done the overwhelming majority of work he performed was in the ACT.
I.C. Formwork submitted “a more confined time frame was required” which was limited for the purposes of Mr Moir's application to his work at Bawley Point in NSW where he had worked from November 2014 until the end of May 2015, when he was injured.
24․The primary judge rejected I.C. Formwork's submission: at [27]. With respect, his Honour was plainly right to do so. The absence of a time frame in s 36B(7) in circumstances where, by contrast, s 36B(6) focusses attention on a time frame is significant. As held by the Court of Appeal in the first appeal, the inclusion of a time frame in s 36B(6) reflects a legislative choice: at [50](c). So too does the absence of any such temporal limitation in s 36B(7). No ground of appeal challenges his Honour’s approach in that respect.
25․The grounds specified in the notice of appeal in respect of the answer to the question where Mr Moir was usually based were helpfully condensed in the appellant's written submissions as follows:
Ground 1: The trial judge erred in finding that the respondent was usually based in the Australian Capital Territory for the purposes of his employment as a result of incorrectly formulating the legal proposition contained within s 36B(3)(b) as informed by s 36B(7). The formulation adopted by the trial judge was wrong for the following reasons:
1A. In concluding, at [41], that the respondent was based at “the places where he is directed to work”, the trial judge erred by conflating the test in s 36B(3)(a) of the Worker Compensation Act 1951 (ACT), for the determination of where a worker usually works, with the test in s 36B(3)(b) for the determination of where a worker is usually based.
1B. In finding the respondent was based at “the places where he is directed to work” the trial judge erred by failing to identify something more than a convenient place from which to perform the work required of the worker in the employment.
1C. The trial judge erred by identifying as neutral factors, elements of the test for usually based that identified no single usual base, as opposed to weighing those factors as matters relevant to the determination of whether or not there was a single usual base for the purposes of the respondent's employment.
1D. The trial judge erred by discounting the period of work performed by the respondent at Bawley Point, NSW, in the months leading up to his injury, in determining where the respondent was usually based for the purposes of the employment.
(Emphasis in the original.)
26․It was indicated in oral submissions that those grounds should be viewed as having been listed in hierarchical order.
Ground 1A: alleged conflation of the tests
27․The critical error in the primary judge’s reasons was said to appear at [41], where his Honour said:
Central to the defendant’s submissions was the “peripatetic” nature of the plaintiff’s work. In essence the defendant submitted that where a worker moved from worksite to worksite he could not have a usual base. I disagree. I do not see why it cannot be usual for a worker to be based at different places. If the nature of his work is that his employer moves him around to do tasks at different places then he is usually based at the places where he is directed to work. If those places are predominantly in the ACT then he is “usually based” in the ACT.
28․I.C. Formworks submitted that this process of reasoning led the primary judge to reduce the test for “usually based” to something so similar to the test for “usually works” as to leave “little if any distinction between the two”. It submitted:
It is difficult to discern any difference at all from the test for usually works if the place where a worker is usually based is to be assessed with reference to each of the places at which the worker is directed to work.
29․The submission confuses the construction of the statute with its application. The fact that, in the circumstances of any individual case, two questions produce the same answer does not mean the questions have been conflated. There would be many cases in which the place a worker usually works is the same as the place a worker is usually based. As noted on behalf of Mr Moir, the statute has been drafted to cover a vast array of different employment circumstances. There will be cases in which the place of employment and the usual base will be the same, and cases in which they will be different.
30․Mr Muller, who appears for I.C. Formwork, further submitted in oral argument that the last sentence of [41] also bespeaks error on the part of the primary judge. His Honour said that if the places where Mr Moir was based were “predominantly” in the ACT then he is “usually based” in the ACT. Mr Muller submitted that that approach was inconsistent with the principle stated in Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 and applied since that the word “usually” in this context means “habitually or customarily”, not “mostly or predominantly”.
31․Some care must be taken in applying the reasoning in that decision in the present context. Hanns was decided before the amendments that introduced s 36B(3) in its current form. The decision was concerned with the first stage of the test as it then stood, which required the Court to determine “the Territory or State in which the worker usually carries out the work of the employment concerned”. The second stage of the test at that time did not include the expression “usually based”. It required the Court to identify “the Territory or State in which the worker's base for the purposes of that employment is located”.
32․In any event, there is no logical reason why the place in which a person is mostly or predominantly based could not also be the place where that person is usually based. The boot was on the other foot in Hanns. As recorded at [8] of the judgment, the insurer’s argument, which the magistrate upheld at first instance, was that the worker “usually carries out the work of the employment” in NSW (not the ACT, as contended by the worker) because “the majority of the time spent by [the worker] carrying out the work of his employment was spent in New South Wales, and not the Australian Capital Territory”. The Supreme Court allowed an appeal from that decision. The effect of the appeal decision was to hold that the fact that the worker did not mostly or predominantly work in the Territory did not preclude a finding that he usually worked in the Territory. Justice Gray said at [25]-[26]:
25. The fact that one or more Territory and State are envisaged apart from a single Territory or State indicates that what is involved is more than just asking the question of where the worker spends the majority of his working time.
26. I consider that by giving “usually” its more obvious meaning of habitual or customary, or that of “in a regular manner”, the test posited by s 7A of the Act (and the corresponding sections of the legislation in the other States and Territories) is relatively simple and straight forward.
33․Accordingly, even if the word “usually” in the phrase “usually based” is used in the sense discussed in Hanns of requiring identification of the place where Mr Moir was “habitually or customarily” based rather than where he was “mostly or predominantly” based, the result is the same. The evidence drawn from the broader time period (not just the 12 month period to which the “usually works” test is confined) established that Mr Moir was habitually, customarily, mostly and predominantly based in the ACT. We are not persuaded that, in reaching the conclusion he did, Elkaim J conflated the two tests.
Ground 1B: failure to identify something more than a “convenient place”
34․The second complaint is that in finding the respondent was based at “the places where he is directed to work” the trial judge erred by failing to identify something more than a convenient place from which to perform the work required of the worker in the employment.
35․I.C. Formwork sought to draw support for this submission from the decision of this Court in Avon Products Pty Ltd v Falls [2010] ACTCA 21; 5 ACTLR 34 at [32]. The worker in that case was an Avon District Sales Manager who had responsibility for a large number of sales agents covering a wide geographical area.
36․The Court said at [32] (Gray P, Penfold and Marshall JJ):
As no single Territory or State is identified in this case by s 36B(3)(a) of the ACT Act, the Court is required by s 36B(3)(b) to attempt to identify where Ms Falls was usually based for the purposes of her employment. The evidence before the Court shows no particular usual base. The fact that Ms Falls did some work from home does not necessarily constitute that place as her base for the purposes of her employment. Something more than a convenient place for part of her duties to be carried out is required before it can be said that her residence was her base in an employment sense. In the same way it might be said that while working in her sales district in the ACT her vehicle was her base. What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate. Accordingly s 36B(3)(b) does not appear to answer the question of what is the State or Territory of connection in the case of Ms Falls.
37․I.C. Formwork relied in particular on the Court’s observation that “[s]omething more than a convenient place for part of her duties to be carried out is required before it can be said that her residence was her base in an employment sense”.
38․The individual reasoning in a different case based on different facts cannot be elevated to a statement of legal principle. As explained by Mossop J at [72] in the first appeal in these proceedings, “the terms of s 36B(3)(a) and (b) should be read according to their terms”. Identification of the Territory or State where the worker is usually based for the purposes of the employment must be analysed through the framework provided by s 36B(7), which specifies “focal points of the analysis”: Mossop J at [50](e).
39․Section 36B(7) provides:
(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.
40․The primary judge addressed those considerations in turn. Consideration (a) is “if the employer provides a place from which the worker is expected to operate–that place”. Addressing that issue, the primary judge said at [29]-[30]:
29. The nature of the defendant's business is to carry out formwork at assorted locations. The plaintiff's participation, as a formworker, was to go to the place where the work was being done and where all of his work-related necessities would be located. Thus, the materials would be on-site as would be his tools. He would participate in any safety meetings, inductions and the like on site. A container was provided by the defendant for storage of any tools and equipment. A site office was also usually present.
30. The defendant submitted that “[t]he question connotes a place that has a fixed character, not simply a convenient place for the performance of some or all of the work”. In my view this characterisation misses the point. The defendant clearly expected the plaintiff to carry out his work at the place where the work was to be performed. The fact that this place might change from time to time does not affect its nature as a place of work. There is no reason that it should be fixed. Accordingly, I find this factor in the plaintiff's favour.
41․I.C. Formwork submitted that the evidence established no single place from which Mr Moir was expected to operate. It may be accepted that, if the evidence did establish a single place, that would identify the jurisdiction in which he was usually based. However, nothing in the wording of the section suggests that this consideration becomes irrelevant if the evidence does not identify a single or exclusive place where the worker is expected to operate. The inquiry is to identify “the Territory or State where the worker is usually based for the purposes of the employment”. To inquire where a worker is usually based contemplates the possibility that a particular Territory or State will be identified as the answer to that question even if the worker is sometimes also expected to operate in another Territory or State. There is no foundation in the text of the statute or reason in logic for assuming that a worker can only be usually based in the Territory if based at a single geographical location within the Territory. This is essentially the point made by the primary judge at [30]. We are not persuaded that his Honour’s analysis of that consideration entailed error.
42․Even if, contrary to our view, consideration (a) is to be construed as being of assistance only where a single place is provided by the employer from which the worker is expected to operate, the error would not necessarily vitiate the judge’s conclusion as that was but one of a number of considerations to which his Honour had regard.
43․Consideration (b) does not arise. The primary judge accepted I.C. Formwork’s submission that no place was identified in the relevant contract.
44․Consideration (c) is “the place from which the worker routinely receives day-to-day instructions from the employer”. As with consideration (a), I.C. Formwork submitted that the real question raised by this consideration is “whether there is identified by the evidence a single usual place from which the worker routinely receives day-to-day instructions”. For the reasons given above in respect of consideration (a), we disagree. There is no foundation in the text of the statute or reason in logic for assuming that a worker can only be usually based in the Territory if they routinely receive day-to-day instructions from the employer at a single geographical location within the Territory.
45․Furthermore, as already noted, it is significant that there is no temporal limitation on the framework within which the issue of where a worker was “usually based” is to be determined whereas the question of where a worker “usually works” is to be determined with focus on the time periods specified in subs 36B(6)(a)(i) and (b). The Court of Appeal acknowledged in the first appeal at [47] the force of the primary judge’s observation during argument that “35 weeks out of 52 weeks has a different complexion than 35 weeks out of 520 weeks” (we assume the reference to 520 weeks was chosen for illustrative effect, being a multiple of 52 weeks. The evidence appears to have been that Mr Moir had predominantly worked in the ACT since becoming a fulltime employee of I.C. Formwork in about 2009: Elkaim J’s first judgment at [10]).
46․Consideration (d) is “the place where the worker attends to collect material for the purposes of their employment”. I.C. Formwork’s argument in respect of that consideration was in effect the same point as for consideration (c). We reject that argument for the same reasons.
47․The primary judge accepted at [39] that no specific place could be identified based on consideration (e).
48․Having regard to the primary judge’s consideration of those matters, we do not accept that his Honour “failed to identify something more than a convenient place from which to perform the work required of the worker in the employment”. His reasoning was based on the statutory considerations and must be assessed in the context of his Honour’s findings in the first decision (including those summarised above at [15]) and the different framework in which the second stage of the test falls to be determined, including the broader temporal framework.
49․We are not persuaded that his Honour erred in the manner identified in this ground.
Ground 1C: “neutral factors”
50․Ground 1C is that the trial judge erred by identifying as neutral factors elements of the test for “usually based” that identified no single usual base, as opposed to weighing those factors as matters relevant to the determination of whether or not there was a single usual base for the purposes of the respondent’s employment.
51․This ground rests on I.C. Formwork’s central contentions that the “usually based” test is concerned with whether there is a single place that can be identified as the place where the worker was usually based for the purposes of their employment and that the test calls for identification of a place as opposed to a State. Mr Muller put the point succinctly in oral submissions in saying that it is in the nature of peripatetic work that the worker has no usual base. It was submitted that, if no “single usual place” can be identified, then it is necessary to move to the third stage of the test.
52․In our view, that analysis puts an unwarranted gloss on the words of the statute, which inquires what is “the Territory or State where the worker is usually based for the purposes of the employment”. There is no warrant for narrowing the parameters of the inquiry so that it only applies to those workers whose work is based at a single place. The inquiry could easily have been directed in those terms. The language chosen by Parliament does not support I.C. Formwork’s construction.
53․Furthermore, as submitted by Mr Moir, the submission does not sit comfortably with the directive of s 139 of the Legislation Act to prefer an interpretation that “would best achieve the purpose of the Act”. As discussed above, the purpose of the Act is informed by the context in which the 2014 amendments were introduced, including the concern that decision-makers were too readily defaulting to the third stage of the test in circumstances where a worker worked in more than one State or Territory. The introduction of the word “usually” in the second stage of the test addressed that concern by making plain that a person who worked in two jurisdictions could still be usually based in only one of the two.
54․The primary judge addressed this issue at [41] of the judgment, repeated here for convenience:
I do not see why it cannot be usual for a worker to be based at different places. If the nature of his work is that his employer moves him around to do tasks at different places then he is usually based at the places where he is directed to work. If those places are predominantly in the ACT then he is “usually based” in the ACT.
55․There was no error in that analysis.
Ground 1D: Bawley Point
56․The fourth ground is that the primary judge:
[E]rred by discounting the period of work performed by the respondent at Bawley Point, NSW, in the months leading up to his injury, in determining where the respondent was usually based for the purposes of the employment.
57․We do not accept that the primary judge discounted the period of work at Bawley Point. He simply rejected the argument that it precluded a finding that Mr Moir was usually based in the ACT. The primary judge said at [27]:
I reject the defendant’s submission that the relevant time frame is effectively limited to the period when the plaintiff was working in Bawley Point. The plaintiff worked for the defendant. Over the period of his employment he usually worked for the defendant in the ACT. I can see no basis in the legislation to narrow the period of employment to the time period surrounding the injury. Had that been the intention of the legislature it could have been simply stated, in the same way that s 36B(6)(a)(i) specifically introduces the time limit of “the previous 12 months”.
58․The primary judge’s findings in respect of the mandatory considerations in sub-ss 36B(7)(a), (c) and (d) amply supported the conclusion that Mr Moir was usually based in the ACT, notwithstanding the fact that he has most recently (that is, within the 12 months before the accident) also usually worked in NSW.
59․For those reasons, the primary judge was right to hold that Mr Moir was usually based in the ACT. It follows that his Honour was also right to hold that, pursuant to s 182D of the Workers Compensation Act, the substantive law to be applied to the plaintiff’s claim for damages is that of the ACT.
60․The appeal must accordingly be dismissed.
Principal place of business
61․In light of that conclusion, it is not necessary to consider the remaining grounds, all of which concern the application of the third stage of the test, the Territory or State where the employer’s principal place of business in Australia is located. Had it been necessary to determine that question, we would have held that the primary judge was wrong to hold that the principal place of business was the ACT.
62․Unlike the first two stages of the test, the third refers to a place of business. As submitted by I.C. Formwork, the mandatory considerations set out in s 36B(8) concerning that test include “ASIC factors”, evidently proceeding on the assumption that, perhaps unlike its workers, an employer will have a single registered address or principal place of business. Certainly, if it does, that will provide the answer to the third stage.
63․The evidence in the present case established that I.C. Formwork had its head office in Queanbeyan, NSW, which served as a “hub” from which the business was conducted and controlled. It appears the primary judge may have overlooked that evidence when he moved to the third stage of the test. That was enough to establish that the answer to the second question, had it arisen, should have been NSW.
Conclusion
64․The appeal must be dismissed with costs.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 19 July 2023 |
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