King v The Heat Group Pty Ltd
[2018] ACTIC 2
•12 July 2018
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | King v The Heat Group Pty Ltd |
Citation: | [2018] ACTIC 2 |
Hearing Date: | 2 July 2018 |
DecisionDate: | 12 July 2018 |
Before: | Magistrate Theakston |
Decision: | The Australian Capital Territory is the Territory or State of Connection for the applicant. |
Catchwords: | WORKERS COMPENSATION – Territory or State of connection – meaning of ‘usually based’ – whether or not Applicant was usually based from home office |
Legislation Cited: | Workers Compensation Act 1951 (ACT) s 36B |
Cases Cited: | Avon Products Pty Ltd v Falls [2018] ACTCA 21 Carrodus v Total State Food Brokers Pty Ltd (Unreported, ACT Magistrates Court, Walker CM, 2 September 2016) Ferguson v WorkCover Queensland [2013] QSC 78 Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1 Rahimi v MDS Tiling Pty Ltd & Ors [2018] ACTIC 1 |
Parties: | Sharon Leanne King (Appellant) The Heat Group Pty Ltd (Respondent) |
Representation: | Counsel Mr A Anforth (Applicant) Mr S Whybrow (Respondent) |
| Solicitors Elringtons Lawyers (Appellant) King & Wood Mallesons (Respondent) | |
File Number: | WC 334 of 2017 |
MAGISTRATE THEAKSTON:
Background
Distributors of goods often employ staff to manage the supply, display and promotion of their products within merchants’ stores. Ms King was employed by The Heat Group Pty Ltd for that purpose. In late 2015, she developed an injury to her right hand and wrist as a result of her work. Ms King has made an application for arbitration under the Workers Compensation Act 1951 (ACT).
The single issue to be resolved is which jurisdiction is connected to Ms King’s employment, and more precisely where, if anywhere, was Ms King usually based when employed by The Heat Group.
Facts not in dispute
The evidence in this matter was consistent and not challenged. I summarise the same below and make findings accordingly:
(a)At all material times, Ms King’s home was within the Australian Capital Territory. Ms King moved between homes, but remained living in the ACT.
(b)In 2012, Ms King commenced working for The Heat Group as a merchandiser. She worked four days a week on a casual basis. That role involved attending various stores, in which The Heat Group’s cosmetic products were offered for sale. At the stores she would assemble and maintain stands of merchandise, including the prominent promotional paraphernalia. That was done in accordance with detailed directions from her manager.
(c)The stores included Priceline Pharmacies, Kmart, Target, Big W, Myer, David Jones, and Coles and Woolworths Supermarkets. The vast majority of these stores were located in the ACT, but some were located in NSW at Queanbeyan, Goulburn and Bega.
(d)Every four to six weeks, The Heat Group would send to Ms King’s home, directions about changes to the stands and new promotions. Those directions would be in a hardcopy form of ‘planograms’ on A3 paper. For a brief period those directions were sent by email.
(e)The Heat Group also sent to Ms King’s home a range of other material that related to her role. That material included product teasers, stripping for store stands, parts for cosmetic stands, replacement parts for stands, graphic panelling for stands, promotional items and sample stock.
(f)The scale of the material was such that early in her employment Ms King requested that The Heat Group provide warehouse storage. That was not provided on the basis that it was ‘not in the budget’. At times there was so much material that it could not fit within the room set aside as a home office within Ms King’s home. The material was stored, in part, in an external shed, sunroom or storage area under Ms King’s house. I infer from these facts that The Heat Group was aware that this material was being stored at Ms King’s house and that it was a necessary part of her role to have somewhere to receive, store and sort that material.
(g)All stock for sale was delivered directly to stores. Ms King also arranged, from time to time, for some of the material described above to be delivered directly to the relevant stores.
(h)Ms King would also receive ad hoc directions by phone or email. Those directions would arrive while she was away from home during the working day, or at home before and after the working day.
(i)Ms King planned and arranged her attendances at the various stores from her home.
(j)Ms King prepared and transmitted detailed reports to her manager. Those reports were ordinarily prepared and transmitted after hours from her home.
(k)Ms King travelled to the stores with the necessary material using her own car. She received an allowance for using her car and home phone.
(l)In late 2013, The Heat Group employed Ms King for additional duties on a fifth day each week. That role involved pharmacies, and included selling products to those pharmacies, as well as assembling and maintaining merchandise stands. The product range was more extensive than her other role and included sunglasses, reading glasses, cosmetics, perfumes and soaps.
(m)The vast majority of pharmacies were located in the ACT. Others were located in NSW at Queanbeyan, Goulburn and Bega.
(n)In August 2015, Ms King was made an ongoing full time employee of The Heat Group. Her duties and the arrangements for the delivery of material remained the same. Most of the stores still remained within the ACT. However the NSW stores were now also located in Merimbula, Tathra, Eden, Murrumbateman, Wagga Wagga, Griffith, Temora, Leeton and Narrandera.
(o)The frequency of the trips to the individual NSW regions was approximately once every four to six weeks. There was only one trip to the Riverina area before Ms King stopped working.
(p)In late 2015, Ms King started experiencing pain and swelling in her right hand and wrist. In early 2016, she was diagnosed with tenosynovitis in her right hand with ganglion cysts.
Which jurisdiction is connected to the employment of Ms King?
As I observed in Rahimi v MDS Tiling Pty Ltd & Ors [2018] ACTIC 1 at [27]:
The State of Connection or Employment Connection test is provided at s 36B of the Act. The test is a precondition for compensation to be awarded under the Act. It is a cascading test with three steps. The second step need only be considered if the answer is not provided by the first step. Similarly, the third step need only be considered if the second step is considered and does not yield an answer.
The first step relates to where the worker ‘usually works in the employment’. It was agreed between the parties that Ms King usually worked in both the ACT and NSW. Accordingly that step does not yield an answer to the question.
The third step relates to ‘where the employer’s principal place of business is Australia is located’. The parties agreed that was in Victoria.
The second step relates to ‘where the worker is usually based for the purposes of the employment’. As indicated above, it is this question that is in issue.
Where was Ms King usually based?
Subsection 36B(7) of the Act provides a number of relevant considerations for the question about ‘usually based for the purposes of employment’ and reads:
(7) In deciding whether a worker is usually based in a Territory or State regard must be had to the following:
(a)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)place from which the worker routinely receives day-to-day instructions from the employer;
(d)place where the worker attends to collect material for the purposes of their employment;
(e)place where the worker reports for administrative, human resource and other issues related to the workers' employment with the employer.
I was referred to the decision of Avon Products Pty Ltd v Falls [2018] ACTCA 21 that describes what may be insufficient to establish a home office as being where a worker is usually based. The facts in that matter involved the worker being employed as a District Sales Manager for Avon and responsible for an area wholly within the ACT. Her duties included recruiting, training and motivating sellers, running sales meetings and promotions in shopping centres and making home visits and training calls. Her duties also involved performing paper and book work, which was performed either in the ACT or at her home office in NSW. Avon provided her with a fax machine for that home office, and the worker had an Avon dedicated phone line in that office.
At [32] the court concluded:
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.
Earlier the court expressly rejected the placing of a gloss on the first step question and observed at [30]:
We also have no doubt that a requirement or the absence of a requirement as to where work is performed is not relevant; the test is where the work is done, rather than where it is required to be done or whether it is required to be done anywhere in particular.
That observation in relation to the first step appears to be based on the construction of the provision, and similar reasoning would apply equally to the second step. That is, the second step is a question of fact about where the worker is usually based for the purposes of the employment, and not a question about if or where the worker was required by the employer to be based.
These two extracts from Avon may be reconciled by observing that the relevant test is the ‘usual base’, without any additional gloss, and the provision by the employer of a place from which the employee is expected to operate would be a relevant consideration for the purpose of determining the test. This approach is reinforced by the s 36B(7) considerations.
I was also referred to Ferguson v WorkCover Queensland [2013] QSC 78. In that decision Applegarth J considered a number of authorities and distilled the following principles:
(a)Where a worker is usually based is a question of fact: at [38].
(b)The ordinary meaning of the terms ‘usually’ and ‘based’ should be adopted, namely ‘customarily, commonly or habitually’ for the former and a place where ‘operations are conducted and where stores and supporting facilities are concentrated; a centre of operations, a headquarters’ for the latter: at [32], [35], [38] and [43].
(c)Where the worker is usually based may be different from where the employer is usually based: at [36].
(d)Where a worker is usually based need not coincide with where the worker usually works: at [36].
(e)The location where a worker routinely attended to receive directions or collect materials or equipment may be highly relevant: at [36].
(f)The place where a worker returned to collect products, where a vehicle used for employment was based, where the worker planned daily runs, where the worker worked while awaiting delivery jobs, where wages are paid or where described within the contract of employment may all be relevant: at [29] and [39].
(g)Where a worker started and finished work each day is relevant, but it may be inappropriate to place undue weight on this consideration: at [40].
(h)The place where a worker is usually based may be a place where the worker spent a small proportion of his or her working day: at [41].
(i)There may be no place where a worker is usually based: [43].
(j)If multiple bases are identified, it would be necessary to ascertain if one can be found to be where the worker was usually based: at [43].
I note out of completeness that I was also referred to the decisions of Burns J in Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1 and the Chief Magistrate in Carrodus v Total State Food Brokers Pty Ltd (Unreported, ACT Magistrates Court, Walker CM, 2 September 2016). I note the facts found, principles applied and outcomes of those decisions.
A submission was made on behalf of the respondent that the second step test envisaged someone starting and finishing at a particular location and who has all of the base functions of their employment located in a particular place and who, for the purposes of their work, travelled across state borders each day such that they do not work in one place, but there is a clear location to which reference can be made, as that is the place from which their work emanates. This submission describes a potential archetype. While the description of an archetypal scenario may be of assistance in certain circumstances, for example to underscore a particular point, the exercise has limitations. I accept the archetype proffered could describe a usual base. However, it is not the only scenario that could amount to a usual base when the relevant considerations are weighed.
Consideration
In the instant case there was no place provided by the The Heat Group from which Ms King was expected to operate, other than the third party stores she visited. As those stores were numerous and offered no staging facilities for her role generally, they could not be bases for the purpose of her employment. There was also no place stated in Ms King’s contract of employment. Those considerations from s 36B(7) are therefore of no assistance.
There are a number of features of the present case that point towards Ms King’s home being a base for the purposes of her employment. They are:
(a)It was from that location she usually started and finished her working days. However, as that location was her home, the mere fact that she started and finished her working days there is less remarkable. I also note the caution suggested in Ferguson and I consequently place very little weight on this consideration.
(b)The Heat Group regularly sent hardcopy ‘planogram’ directions for Ms King’s attention to that address. Tempering this feature to a limited degree, The Heat Group also provided ad hoc directions by phone and email, and they may have been received by Ms King while she was away from her home.
(c)The Heat Group consistently transported a significant amount of material to that location for the purpose of Ms King’s employment. While that did not include sales stock, it was significant in quantity and essential to her role. Ms King stored that material at her home, and that was done with the knowledge of The Heat Group. Ms King had requested that material be stored elsewhere, but that was refused by The Heat Group. Ms King would collect that material, for the purposes of employment, from her home and transport it to the relevant stores. I place significant weight on this consideration.
(d)Ms King performed a range of employment activities at that location, in between her daily travels to various stores. Those activities included:
(i) receiving instructions from The Heat Group;
(ii) receiving, storing, sorting and loading the above material;
(iii) planning and arranging her attendances at stores; and
(iv) preparing and transmitting detailed reports to her manager.
I also place significant weight on this consideration.
(e)The vehicle Ms King used, which was essential for her role, was based at her home. However, the vehicle in question was Ms King’s personal car and would be expected to be based at her home in any event. Accordingly, I place little weight on this consideration.
(f)Ms King spent the vast majority of her working time in the ACT.
On the other side of the scales there are a number of features of the present case that weigh against Ms King’s home being a base for the purpose of her employment. They are:
(a)The location was not provided by The Heat Group. Tempering this to a substantial degree, is that The Heat Group were aware that Ms King was working from home and using that location as a staging point for her role. The role required such a staging point, one was not provided by The Heat Group, and it could not be conducted within a vehicle alone. I accordingly place little weight on this consideration.
(b)Ms King did not receive directions from The Heat Group personally at that location.
(c)Ms King did not report to her home for the purposes administrative, human resources or other issues related to her employment, although she may have communicated about such issues while she was present there.
(d)Ms King spent a large part of her working day away from her home.
Submissions adopted on behalf of the respondent suggested that Ms King had no particular office that she attended on a day-to-day basis, her work varied day-to-day and she worked across two jurisdictions. For those reasons it was submitted that there was no usual base. While it is true there was no office provided by The Heat Group for Ms King to attend, she worked in her home office daily and the balance of her duties did not involve office work. No doubt there would be some variation in her day-to-day work, but the unchallenged evidence was that her role involved performing the same types of functions at various stores on a regular and repeated basis. More importantly, these submissions do not directly address the fundamental considerations for the second step test.
It is clear from the facts that Ms King’s home was more than a convenient place for her to carry out part of her duties. The use of a place, not provided by The Heat Group was necessary for staging purposes. Ms King requested a separate venue, but that was not provided. She ultimately had little choice but to use her home, or arrange an alternative venue, for those purposes. She chose her home, and The Heat Group sent directions and materials there. To illustrate the distinction between simply living at home and using the residence as a base, I note that had Ms King, for whatever reason, elected not to stay overnight at her home, as people do from time to time, it may be necessary, in order to perform her role, for her to attend her home before making her way to the various stores.
When I weigh the above considerations, while applying the above principles, I am satisfied that Ms King was based at her home for the purposes of her employment.
I am not satisfied Ms King was also based somewhere else for the purpose of her employment. No other site was realistically identified, save her car. It is clear that her car would be insufficient to provide an adequate staging point, particularly in relation to being able to receive and store the materials.
Accordingly I find that the ACT was where Ms King was usually based for the purpose of her employment, and therefore the ACT is the Territory or State of connection.
Orders
I make the following declaration: The Australian Capital Territory is the Territory or State of Connection for the applicant.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 12 July 2018 |
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