Nasery v Global Rail
[2024] VMC 8
•6 June 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. MAG-CI-220051251
| KHAIS NASERY | Plaintiff |
| v | |
| GLOBAL RAIL (AUSTRALIA) PTY LTD (ACN 158 944 015) | Defendant |
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MAGISTRATE: | Magistrate M J Richards |
WHERE HELD: | Melbourne (Online) |
DATE OF HEARING: | 5 March 2024 (Defendant’s submissions provided 18 April 2024; Plaintiff’s submissions provided 29 April 2024; Defendant’s reply submissions provided 6 May 2024) |
DATE OF DECISION: | 6 June 2024 |
CASE MAY BE CITED AS: | Nasery v Global Rail |
MEDIUM NEUTRAL CITATION: | [2024] VMC 8 |
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WORKERS COMPENSATION - Rejected claim for compensation - Preliminary ruling - Entitlement to compensation only if employment connected with Victoria - Worker injured whilst working in Tasmania - Determination of State with which employment is connected - Workplace Injury Rehabilitation and Compensation Act 2013, s 37.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr A Macaskill | PRD Legal |
| For the Defendant | Ms K Bradey | Hall & Wilcox |
HIS HONOUR:
Introduction
I have been asked to make a ruling with respect to whether the Plaintiff’s employment with the Defendant was connected with the State of Victoria pursuant to s 37 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the WIRC Act). Such a determination is required pursuant to s 314 of the WIRC Act.
The matter proceeded before me as a preliminary hearing on 5 March 2024. Mr A Macaskill of Counsel appeared for the Plaintiff. Ms K Bradey of Counsel appeared on behalf of the Defendant. The Plaintiff’s case consisted of viva voce evidence from Khais Nasery (the Plaintiff) and Richard Needham, the Operations Manager of the Rail Division of Global Rail (Australia) Pty Ltd (the Defendant). A joint statement of agreed facts was also provided by the parties dated 1 March 2024. An Amended Joint Court Book (JCB) dated 4 March 2024 was tendered by consent (Exhibit 1).
Background
The Plaintiff completed a claim for compensation on 11 August 2022 alleging a psychogical injury as a result of witnessing the death of a co-worker on 20 July 2022. At the time the Plaintiff was working for the railway division of the Defendant at a work site in Evandale, in the State of Tasmania (JCB 45-48). The Plaintiff ceased work the same day and has not returned to employment.
The claim for compensation was rejected on behalf of the Defendant by Allianz Australia Workers Compensation (Victoria) Limited (Allianz) on 16 September 2022 on the grounds that the employment of the Plaintiff was not connected with the State of Victoria (JCB 49-56). The notice of rejection relied on the following reasons:
You are employed by Global Rail (Australia) Pty Ltd as a Labourer.
Your employer has informed Allianz that you work exclusively in Tasmania.
Your employer has provided the following additional information in relation to your
employment;
· The place from which your employment expects you to operate is Tasmania
· The place from which you routinely receive day to day work instructions or directions is Tasmania
· The place you report to in relation to the work is Tasmania
· The place you attend to collect materials for the purpose of your employment is Tasmania
· The place where you report to for administrative, human resources and other non-specific related employment issues is Tasmania
· The place from which your wages are paid is Victoria
· The location of your employer’s principal place of business is Victoria.
Sections 37(1), (2), (3) and (6) of the Act provide as follows:
There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.
The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.
A worker’s employment is connected with –
(a)the State in which the worker usually works in that employment; or
(b)if no State or no one State is identified by paragraph (a), the state in which the worker is usually based for the purposes of that employment; or
(c)if no State or no one State is identified by paragraph (a) or (b), the state in which the employer’s principal place of business is located.
(6) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer over the preceding 12 months and the intentions of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a state for a period of not longer than 6 months.
The relevant case law states that if a worker undertakes work in more than one State, the worker usually works in all of those States for the purposes of the cross border legislation.
Allianz has determined that:
· You usually work in Tasmania in your employment with Global Rail (Australia) Pty Ltd.
· Your claimed injury did not arise out of or in the course of employment that is connected with Victoria.
· You are not entitled to compensation under this Act because your employment is not connected with Victoria.
Allianz recommends that you lodge a claim for compensation in Tasmania.
The Plaintiff has challenged the rejection of his claim for compensation by Allianz.
The Evidence
Agreed Facts
The parties agreed to the following facts:
(a)Since 13 July 2015, the Defendant’s principal place of business in Australia for the purposes of the Corporations Act 2001 has been 5 Plane Tree Avenue, Dingley Village in the State of Victoria.
(b)The Defendant conducted its business in various locations, including in Victoria and Tasmania, depending on the contracts it secured and the locations where those contracts were required to be performed.
(c)The Plaintiff was employed by the Defendant on a casual basis, and worked intermittently from time to time from about 4 October 2019 until he suffered his injury on 20 July 2022.
(d)A contract of employment with the Defendant was signed by the Plaintiff on 3 October 2019 (the employment contract: JCB 94-101).
(e)A document outlining the Plaintiff’s work history for the Defendant is contained in the court book and entitled “Job History.” The Plaintiff performed work for the Defendant as follows:
·About 4 October 2019 to 27 October 2019: Defendant’s project C435 for Laing O’Rourke in the State of Victoria.
·About 6 January 2020 to 19 January 2020: Defendant’s project C458 for UGL in the State of Victoria.
·About 2 March 2020 to 29 March 2020: Defendant’s project C465 for V-Line in the State of Victoria.
·About 23 November 2020 to 6 December 2020: Defendant’s project C458 for UGL in the State of Victoria.
·About 16 June 2022 to 3 July 2022: Defendant’s project C509 for Tasmania Rail (TasRail) in the State of Tasmania.
·About 4 July 2022 to 20 July 2022: Defendant’s project C521 for TasRail in the State of Tasmania.
(f)All of the Plaintiff’s wages for the work he performed for the Defendant were paid by the Defendant in and from the State of Victoria.
(g)When in June 2022 the Plaintiff recommenced work for the Defendant, up until he suffered injury on 20 July 2022, all of his work was situated exclusively in Tasmania.
(h)Whilst working in Tasmania the Plaintiff was paid $160 per working day as a “travel allowance”, which included allowance for accommodation, meals, and incidentals, in accordance with Part 9 of the Defendant’s “Casual Employee Handbook” (JCB 103-132).
(i)On 20 July 2022, the Plaintiff suffered psychological injury arising out of and in the course of employment with the Defendant, as a result of witnessing the death of a co-worker on site at Evandale in the State of Victoria.
(j)The Plaintiff submitted a claim for compensation dated 11 August 2022 pursuant to the WIRC Act, which was rejected by notice dated 16 September 2022.
(k)The Plaintiff submitted a claim for compensation dated 15 August 2022 pursuant to the Workers’ Rehabilitation and Compensation Act 1988 (Tas) (the WRC Act), which was accepted by Notice dated 23 August 2022 (JCB 58-66).
(l)The Plaintiff has received weekly payments of compensation and medical and like expenses pursuant to the WRC Act since the acceptance of the Plaintiff’s claim under that Act.
(m)The Plaintiff has not worked for the Defendant since 20 July 2022.
Evidence-in-chief of the Plaintiff
The Plaintiff was shown the employment contract signed on 3 October 2019 and was asked what the circumstances were leading to signing the contact. At the time the Plaintiff said he was working as a casual worker for a labour hire firm and wanted to do rail work. Daniel was the manager of the labour hire firm and told the Plaintiff he could get a rail job with the Defendant, if he rang Richard, their operation manager. The Plaintiff rang Richard and was employed by the Defendant as a casual employee.
The Plaintiff said he signed the employment contract at 5 Plane Avenue in Dingley, Victoria and was given a shirt with the name of the Defendant to wear at the same time. The Plaintiff said he then underwent an online induction with the Defendant, conducted by Julie Anne Griffin, who worked in reception. Richard and Casey, another employee of the Defendant, were also present.
The Plaintiff commenced working intermittently for the Defendant on rail projects in Victoria. At the time, the Plaintiff was working in casual employment for three or four other rail companies, including the Defendant. The Plaintiff said he went where the work was.
The Defendant had the Plaintiff’s details and would contact him when there was work available. The Plaintiff said he would be contacted by either Julie Anne, Richard or Casey who were all based at Dingley and that they would tell him where the work was.
The Plaintiff said he worked under supervision from the Defendant when he worked in Victoria. Richard would pop in and see how things were going and see if anyone needed anything. All the materials and equipment were on the sites where he worked.
The Plaintiff was shown a few text messages (JCB 163-172). The Plaintiff said they were messages between himself and Richard. The first message was sent at 1.23pm on 27 January 2022 and read:
Hi mate got a msg regarding work with mtm I’m keen to start.
Richard replied at 2.55pm the same day and said:
Thanks, first weekend is the 11th feb and ongoing from then. I will give you a call tomorrow morning.
The Plaintiff said the reference to ‘mtm’ was to Metro Trains Melbourne (MTM). The Plaintiff said he sent the message to Richard because his work had been slow, and he had been told by another cowPrker that the Defendant had ‘heaps of MTM contracts with Laing O’Rourke.’
The Plaintiff said the Defendant then lost the work they had for MTM and the rail work did not take place.
Following that, Richard had a discussion with the Plaintiff about working in Tasmania. The Plaintiff said he was not told how long the work would be for in Tasmania but agreed to work for a block of 13 days where he would fly in and fly out.
At the end of the first block of 13 days, the Plaintiff said Paul Tunney, who the Plaintiff thought was the Defendant’s Head Supervisor, told him they were impressed with his work and would he come back and work for the Defendant.
The Plaintiff said, at the time, Paul wanted him to work for an extra 4 days which he could not do. The Plaintiff agreed to come back and work for another block of 13 days in Tasmania. The Plaintiff said he thought he would work for 1 or 2 blocks of 13 days and then come back to Melbourne to work.
The Plaintiff said the material and equipment required for the work in Tasmania was located at the Tasmanian site in Launceston. The plaintiff said he continued to wear the shirt given to him by the Defendant in Tasmania.
The Plaintiff said his understanding was that his employment with the Defendant was based in Victoria.
The plaintiff agreed he completed a Victorian claim for compensation pursuant to the WIRC Act on 11 August 2022 and completed a Tasmanian claim for compensation pursuant to the WRC Act on 15 August 2022.
Cross-examination of the Plaintiff
The Plaintiff agreed he was employed by the Defendant to perform rail work on a casual basis and that he would go where the work was. The Plaintiff agreed, if the rail work that needed to be performed was in NSW, he would have gone to NSW. He agreed if the rail work was in Victoria, he would work in Victoria, and if the rail work was in Tasmania, he would go to Tasmania.
The Plaintiff agreed his work for the Defendant was initially in Victoria. He agreed he worked on four separate occasions in Victoria for the Defendant from October 2019 to December 2020.
The Plaintiff agreed with the following:
·from about 4 October 2019 to 27 October 2019, he worked for the Defendant on a project for Laing O’Rourke in Victoria which involved Metro Trains Melbourne;
·from about 6 January 2020 to 19 January 2020, he worked for the Defendant on a project for UGL involving the Avon River bridge upgrade in Stratford in Victoria. The Plaintiff said he stayed in Stratford whilst performing the work and was paid a travel allowance;
·from about 2 March 2020 to 29 March 2020, he worked for the Defendant on a project for V-Line throughout Victoria;
·from about 23 November 2020 to 6 December 2020, he worked for the Defendant on a project for UGL, based in Stratford in Victoria.
The Plaintiff agreed that none of the above projects lasted for more than six months.
The Plaintiff agreed he attended the Dingley office of the Defendant to sign the employment contract and get his uniform. The Plaintiff thought he went back to Dingley on another occasion to see Julie Anne but could not remember why. The Plaintiff was asked whether it might have been about his pay or leave but the Plaintiff said he could not recall.
The Plaintiff agreed that Richard was Richard Needham, the Operations Manager of the Defendant’s Rail Division.
The Plaintiff agreed that, after working for the Defendant on the UGL project at Stratford in December 2020, he did not work for the Defendant until June 2022.
Between December 2020 and June 2022, the Plaintiff worked for another employer in Victoria.
The Plaintiff agreed Mr Needham rang him sometime before June 2022 and offered him work in Tasmania on the basis that he would fly in and work for 13 days, and then fly out and go back to Victoria for 8 days. The Plaintiff agreed there was no discussion about work in Victoria.
The Plaintiff said he agreed to work in Tasmania for a short time. He said he had accommodation at a hotel in Launceston for the 13 days and that he, and another worker, were provided with a vehicle to drive to and from the worksite by the Defendant.
The Plaintiff said he had a supervisor called Jason James and Mr Tunney oversaw him. At the end of the first period of 13 days, Mr Tunney asked him to stay for an extra 4 days which the plaintiff said he could not do. The plaintiff said Mr Tunney was impressed by his work and asked him to come back and work another period of 13 days which he agreed to do.
The Plaintiff then went back to Victoria for 8 days. The Plaintiff said he was not required to go back to Victoria by the Defendant. The Plaintiff could not remember if he worked for another employer during that time but if work had been available, he would have taken it.
The plaintiff agreed he did an induction course with TasRail before commencing his first stint of 13 days in Tasmania. He could not remember if he did the induction course with TasRail at the Defendant’s rail depot in Launceston. The Plaintiff said he might have gone to the Defendant’s rail depot once which was after the incident on 20 July 2022.
The Plaintiff agreed Mr James gave him instructions about what work he had to do on the ground in Tasmania and that Mr Tunney was above Mr James. Mr James would tell the workers what had to be done at the start of the day. Sometimes Mr Tunney was also on site.
The Plaintiff said Mr Needham did not come to the site during the first block of 13 days that he worked. He could not recall whether Mr Needham came to the site during the second block of 13 days that he worked. The Plaintiff said he remembered texting Mr Needham about the work vehicle at one stage.
The Plaintiff said all the equipment and material in Tasmania were on the welder’s truck which was on site.
The Plaintiff agreed he received a travel allowance of $160 a day whilst working in Tasmania. The Plaintiff said he was also paid a travel allowance in Victoria by the Defendant, but it depended on where he was working in relation to where he lived.
The Plaintiff was asked about the conversation he had with Mr Tunney at the end of his first 13 day working stint. The Plaintiff said he realised there was ongoing work for the Defendant in Tasmania when Mr Tunney asked him to come back and work another 13-day period. The Plaintiff agreed fixing the southern rail line in Tasmania was a big job and that more rail work would be available in Tasmania.
The Plaintiff said he accepted the Defendant’s offer and went back to Tasmania for a second block of 13 days which was cut short because of the work incident on 20 July 2022.
It was put to the Plaintiff that, if the work incident had not occurred, and his work was up to standard, Mr Tunney would have offered him more work. The Plaintiff agreed but said that the workers were having issues about pay and he may not have continued working beyond another block of 13 days. The Plaintiff said he did understand that ongoing work would have been available in Tasmania even if had decided not to return.
The Plaintiff thought the Defendant did have some work in Victoria working with V-Line at the time. It was put to the Plaintiff that Mr Needham would give evidence that the only work that the Defendant had in the period from June 2022, and for the remainder of the year, was in Tasmania. The Plaintiff said he was not the Operations Manager so he would not know.
The Plaintiff agreed that, as of the date of the incident, it had been his intention to continue working in Tasmania for the remainder of the 13-day stint. It was put to the Plaintiff that he would have continued working for the Defendant on 13-day stints, with 8 days off, for as long as the work was available and as long as the Defendant was happy with his work. The Plaintiff said to some extent that was correct.
The Plaintiff said he did not attend the Defendant’s office in Dingley when he was working in Tasmania. He said the workers were in touch with the office by email.
The Plaintiff said the last time he attended the Defendant’s office in Dingley was after he signed the employment contract, but he could not remember when that was.
It was put to the Plaintiff that he would not have attended the Defendant’s office in Dingley between December 2020 and when he commenced work in Tasmania in June 2022. The Plaintiff eventually agreed that he did not attend the Dingley office during that period.
The Plaintiff agreed he did not attend the Defendant’s office in Dingley after commencing work for the Defendant in Tasmania in June 2022.
The Plaintiff agreed his lawyers submitted a claim for compensation in Tasmania which was accepted. The Plaintiff agreed he was paid compensation and medical expenses until those payments were suspended as a result of being incarcerated. When he was released, the Plaintiff said he sought reinstatement of his compensation payments and was still waiting to hear in relation to that request.
Re-examination of the Plaintiff
The Plaintiff said the travel allowance of $160 he received when working for the Defendant in Tasmania covered his accommodation, meals, and incidental expenses. When working for the Defendant in Metropolitan Melbourne, the Plaintiff said he did not receive an allowance for accommodation. The Plaintiff said he did receive a daily allowance to cover his travelling from home to the work site in Metropolitan Melbourne.
The Plaintiff said the Defendant made the arrangements for him to have a vehicle when working in Tasmania. He said the details were on the flight tickets and that they were arranged by someone called Bailey who worked in the Dingley office.
It was put to the Plaintiff that, whilst his evidence had been that he would have been happy to continue working for the Defendant in Tasmania, if they had wanted him to continue working, what would his preference have been with respect to working in Tasmania or Victoria. The Plaintiff said that he had initially messaged Mr Needham about working in Victoria, so working in Victoria would have been his preference.
The Plaintiff said he discussed his preference for working in Victoria with Mr Needham. The Plaintiff said his preference was to work in Victoria when he messaged Mr Needham in January 2022, but he then went to gaol. The Plaintiff said he did not know what happened to the Defendant’s work in Victoria, but Mr Needham then told him that the Defendant had work in Tasmania. The Plaintiff said until his work with ‘ARG’ and everything else got back, he told Mr Needham he would work in Tasmania.
In answer to a question from the Court, the Plaintiff said he thought he was incarcerated from January 2022 to April 2022.
Further cross-examination of the Plaintiff
The Plaintiff was asked whether the above period was his only period of incarceration. The Plaintiff said it was his only period of incarceration during his time in ‘Rail.’
The Plaintiff was asked whether he had been incarcerated since the incident in July 2022. The Plaintiff said he had been incarcerated again and had requested the reinstatement of his Tasmanian compensation payments following his release.
Evidence-in-chief of Richard Needham
Mr Needham has worked as the Rail Manager for the Defendant since May 2019. He is based at their Dingley office in Victoria. Mr Needham looks after the infrastructure division of the Defendant which involves tendering for work, project management and overseeing the rail business. The infrastructure division deals with rail maintenance and construction.
Apart from the infrastructure business, the Defendant also has a telecommunications and engineering division.
Mr Needham says the Head Office of the Defendant is based in Melbourne. The rail division of the Defendant operates mainly in Tasmania and that is the focus of the Defendant. As well as having a depot in Dingley in Melbourne, the Defendant has a depot in Launceston, Tasmania.
Mr Needham said the Defendant obtained work by tendering for projects across Victoria and Tasmania. If the Defendant won a tender, they would move forward by setting up a project team, do the paperwork, recruit the people required and start the project.
Mr Needham said he was responsible for the recruiting of the workforce for the contracts. The Office Manager and the HR Manager also assisted with the workforce. The current Office Manager is Petra. The previous Office Manager was Bailey. Bailey was the Defendant’s HR Manager in mid-2022.
Mr Needham said the Defendant had a large pool of casual employees to call upon and they would use those workers who had the right skill set for the job. If they were employed to work in Tasmania, they would undergo an induction course over there. The Defendant would go through the project with them, tell them how long the project would go for and what the roster would be.
Mr Needham said, as of mid-2022, the Defendant only had contracts for rail work in Tasmania. This work was in Launceston and halfway down Tasmania towards Hobart. Mr Needham said the focus of the Defendant was on the work in Tasmania at that time because they had no rail work in Victoria.
Mr Needham said the Defendant has not been successful in winning any Victoria based rail work since then and have continued with working on rail projects in Tasmania to this day.
Since mid-2022, Mr Needham has travelled to Tasmania on and off. He would talk to the supervisor on site in Tasmania, as well as having a daily team meeting with the supervisor if he was in Melbourne. Mr Needham said he travelled to Tasmania in June 2022. He did not go to Tasmania in July 2022 because he was overseas on a holiday.
In June 2022, Mr Needham said he travelled to Tasmania and spoke to the Paul Tunney who was the supervisor on-site and he would have met with TasRail as part of the handover.
Mr Needham said Mr Tunney was based in Tasmania throughout 2022. The Defendant had rented him a house. Mr Tunney would fly in to Tasmania from Victoria. Sometimes he would stay for a month or, on occasions, do the same roster as the other workers. He was the supervisor of the Tasmanian work. His role was to make sure the project was being achieved. Mr Tunney would meet with the TasRail representative. TasRail also had a surveillance officer and Mr Tunney had regular one-on-one meetings with him.
Mr Needham said Jason James was also a full-time Tasmanian supervisor for the Defendant. Mr James ran the work crews on the day to day works. He would do the pre-start meetings and oversaw the crew during the workdays.
Mr James would stay with Mr Tunney in the rented house provided by the Defendant but would sometimes fly back to Victoria.
Apart from Mr Tunney and Mr James, half of the Defendant’s workforce in Tasmania were local and the other half of the workforce flew in and out from Victoria. These workers had skill sets that could not be provided by the Tasmanian workers.
Mr Needham said he had a telephone conversation with the Plaintiff sometime in May 2022. The Defendant had rail work commencing in Tasmania in June 2022. Mr Needham said he spoke to the Plaintiff about the work, what it involved and what the roster would be. Mr Needham said he told the Plaintiff the work was a 13-day roster with 8 days off. Mr Needham said he explained the hours and the fly in, fly out nature of the work. Mr Needham said he told the Plaintiff that the Defendant had ongoing work in Tasmania.
Mr Needham said the Plaintiff was happy with the fly in, fly out work proposed by the Defendant. Mr Needham said he told the Plaintiff that the Defendant had two contracts for work in Tasmania and that there would be ongoing work for a minimum of a year. Mr Needham said the Plaintiff was happy about the length of the work at the time. Mr Needham said the Defendant’s supervisors and superintendent were in contact with the Plaintiff about the work and they organised the flights with the Defendant’s office according to the work roster.
Mr Needham said the Plaintiff enjoyed the work when he started in Tasmania.
At the time, Mr Needham said the intention of the Defendant was to have the Plaintiff continue working for them in Tasmania. The Defendant had fifteen workers flying in and out of Tasmania. The Plaintiff would have been working for the Defendant until the end of the project and on any other projects in Tasmania. Mr Needham said the plaintiff had expressed a desire to work on other projects in Tasmania if the Defendant had been successful in obtaining the work. Mr Needham said that work would have been on the South Line and the Bell Bay Line on projects C509 and C521.
Mr Needham said the contract for C509 finished in January 2023 and the contract for C521 finished in August 2023.
Mr Needham said the Plaintiff did a company induction course in Launceston before he commenced working for the Defendant.
Any materials required for the work in Tasmania were in the rail car on the Tasmanian site. Mr Needham said the Defendant had containers and site caravans. All the material was delivered to the work site. The Defendant had their own vehicles and plant and TasRail provided the rail and sleepers.
Mr Needham said the Plaintiff was based in Tasmania for the period of this work and did not use the Dingley office of the Defendant.
Cross-examination of Mr Needham
Mr Needham agreed the Plaintiff signed an employment agreement when he commenced work as a casual employee with the Defendant. Mr Needham agreed the employment agreement outlined the employment terms outlined the casual workers in the pool of workers used by the Defendant.
Mr Needham was referred to the employment contract signed by the Plaintiff on 3 October 2019. Mr Needham agreed the Plaintiff was employed on a casual basis as expressed in Clause 3.1. Mr Needham was referred to Clause 6 which was headed ‘Place of Employment’. Clause 6.1 stated the Defendant’s current primary business location was described in Item 6 of the Schedule as ‘5 Plane Tree Avenue, Dingley Village VIC 3172’.
Mr Needham was asked whether he accepted that the Defendant’s principal place of business was ‘5 Plane Avenue, Dingley Village’ in Victoria. Mr Needham said that was the Defendant’s head office but said he did not accept that it was the Defendant’s principal place of business in Australia as all the Defendant’s actual work was based in Tasmania.
Mr Needham was referred to an ASIC search with respect to the Defendant (JCB 67). The search stated that the principal place of business of the Defendant was ‘5 Plane Tree Avenue, Dingley Village, Vic., 3172’. Mr Needham said he did not dispute that address but said that all the Defendant’s work in the rail division was in Tasmania at that time.
It was put to Mr Needham that not all the Defendant’s work in the rail division was based in Tasmania in 2019 and 2020. Mr Needham said the Defendant had a little bit of work in Victoria during that period.
It was put to Mr Needham that the management of the Defendant was based in Dingley. Mr Needham said he was based in Tasmania for the project in 2022 but was also working out of the Dingley office. He agreed he was based at the Dingley office when he was not travelling.
Mr Needham agreed the CEO of the Defendant, Mr Ivan Holloway, was based in the Dingley office.
Mr Needham said Ms Julie Anne Griffin had been employed by the Defendant as the Office Manager at Dingley. Casey was another employee at the Dingley office. She was the Defendant’s Operation Manager. Bronwyn Curran also worked as the Health and Safety Executive. She worked between Tasmania and Dingley and from home. Ms Curran was the only person still employed by the Defendant.
Mr Needham was referred to Clauses 6.2 to 6.4 of the employment contract which read:
6.2 You will be required to work at this location, unless otherwise reasonably requested by the employer.
6.3 Due to the nature of the role and the business, you will be required to travel and work at various sites, as reasonably directed by the Employer.
6.4 You may also be required to travel as reasonably necessary for the performance of your duties.
(JCB 97).
Mr Needham agreed the ‘location’ referred to in Clause 6.2 was the Defendant’s office in Dingley Village and that Clauses 6.3 and 6.4 meant that the Plaintiff would be sent to various sites from time to time.
Mr Needham agreed that, in accordance with the Clauses, the Plaintiff could be given work in Victoria or Tasmania or in another state, if there was work available.
Mr Needham agreed the Plaintiff did some work in Victoria in 2020.
Mr Needham was referred to Clauses 7.2 to 7.3 of the employment contract which read:
7.2 You are employed as a casual employee and are required to perform the hours of work allocated by the Employer from time to time.
7.3 The employer will give you reasonable notice of when you are required to work in accordance with any requirements under the industrial instrument. The employer does not guarantee to provide you with a minimum or maximum amount of work.
(JCB 97).
Mr Needham agreed there was no guarantee for a casual employee of any hours of work, or of the duration of any work, being allocated. Mr Needham said the Defendant would speak to the workers on site, or wherever they were, and let them know about the upcoming work. Mr Needham agreed the work would be allocated to the casual workers, depending on what was available at the time, and what skill set was required.
Mr Needham agreed there would be periods during the Plaintiff’s employment where no work would be allocated to the Plaintiff. Mr Needham said a lot of the casual workers employed by the Defendant had ongoing work and it just depended on how long the project was for.
Mr Needham agreed that, on any given project there might be more work available for casual workers from the pool during some periods, and less work available for casual workers from the pool during other periods. Mr Needham agreed that, once a casual worker had signed an employment contract they remained on the books of the Defendant, and what work there was depended on what work was available from time to time.
Mr Needham agreed that the nature of casual rail work was that casual workers from the Defendant’s pool would go where the work was available. Mr Needham sad they would also work for other employers in between working for the Defendant. When work did become available with the Defendant, the worker would then resume work pursuant to the employment contract.
Mr Needham agreed that once a casual worker commenced on a particular piece of work with the Defendant they were not obliged to come back or remain working for the Defendant.
It was put to Mr Needham that, once a casual worker commenced a fly in, fly out rotation of 13 days on and 8 days off, there was no obligation on the Defendant to provide a further block of 13 days after the previous block of 13 days. Mr Needham said the Defendant would try and book the worker for the next block of 13 days halfway through the block of 13 days that were working. This enabled the Defendant to arrange the flights for the next block.
Mr Needham was asked whether there was any commitment from the Defendant to a casual worker beyond two blocks. Mr Needham said there was ongoing work and that there was a commitment beyond the next block. The Defendant always tried to book the flights early because it was cost effective.
It was put to Mr Needham that the Defendant would only plan to book flights for the next block and that there was no planning beyond that block. Mr Needham said the Defendant knew its program for the duration of the projects. If the project was going to take a year, the Defendant would know how many workers would be needed for that year. The Defendant would always stick to the same work crew unless there was a variation.
Mr Needham agreed that the Defendant was not obliged to stick to the same work crew under the employment contract. However, Mr Needham said the Defendant would try and stick to the same work crew because it was always better if the workers were consistent throughout the whole project.
Mr Needham said the Dingley office allocated the casual workers at first instance and that it would then be up to Mr Tunney or Mr James as to whether they wanted those workers to continue on the next block of work. If they had a problem with a particular worker and they did not want him to continue working, they would arrange for someone else.
Mr Needham agreed if a worker decided not to continue working after a block of work, the Defendant would have to replace the worker.
In 2020, Mr Needham said the Plaintiff would have been allocated his work in Victoria by Casey, the Operations Manager, from the Dingley office.
Mr Needham said he did not speak to the Plaintiff about the allocation of his work in Victoria. Casey would have been involved as the Operations Manager.
Mr Needham agreed the Plaintiff was part of the Victorian workforce working in Tasmania in 2022. Mr Needham said the office in Dingley knew where the Plaintiff was working but the roster in Tasmania was handled by Mr Tunney who was the Tasmanian Superintendent.
It was put to Mr Needham that the Plaintiff reported to himself and the other staff at the Dingley office when he was working in Tasmania. Mr Needham disagreed. Mr Needham said the Plaintiff would not report to the Dingley office when working in Tasmania. As a labourer he would report to his Tasmanian supervisor. Mr Needham accepted that the Plaintiff would still report to the Dingley office for administrative and human resources purposes.
Mr Needham agreed that the Plaintiff’s compensation claim was dealt with by Bronwyn Curran who was based at the office in Dingley. Mr Needham said Ms Curran looked after all the compensation claims by workers, regardless of the State.
It was put to Mr Needham that when the plaintiff worked on a particular job site in Victoria, he would be supervised by the Defendant’s Victorian based supervisors. Mr Needham said the Defendant would provide the labour to the client and the Plaintiff would be under their supervision mainly.
Mr Needham said the Defendant would provide supervision on some sites and not on other sites. It depended on the nature of the project.
Mr Needham said he might go to a Victorian site in the morning and make sure everything was okay, but he would not provide any supervision as that was the client’s role and not his.
Mr Needham said he might attend a Victorian site to make sure that everyone who had been allocated a job had turned up. However, the supervision would be provided by the client such as MTM.
Mr Needham was asked about the Defendant’s depot in Launceston. Mr Needham said the client normally provided the materials such as the rail and sleepers and the Defendant would provide the tools to do the job. The Plaintiff may have collected some ‘biscuits or pads’ from the Defendant’s Launceston depot but most of the time the materials and equipment were already on site or at the depot ready to be loaded on the tool trucks to go to the site.
Mr Needham said the Plaintiff would normally go straight to the Tasmanian work site and not the depot.
Mr Needham agreed the Plaintiff’s wages were paid by the Defendant’s Dingley office based on time books from Tasmania.
Mr Needham was referred to the Casual Employee Handbook (JCB 102-131) and paragraph 9 headed ‘Company Required Travel’. Mr Needham was referred to the following:
Introduction
Global Rail Australia is committed to provide an agreed standard of support, workplace amenities and living conditions for those employees who are temporarily required by Global Rail Australia to travel and live away from home on company authorised work.
(JCB 117).
Mr Needham agreed the above extract applied to the Plaintiff whilst he was working in Tasmania. Mr Needham was referred to sub paragraph (iv) which referred to a travel allowance of $160 per day being paid for accommodation, meals, and incidentals. Mr Needham believed that the Plaintiff would have been paid the travel allowance whilst working in Tasmania. Mr Needham said the travel allowance also applied to Victoria if the work site was not within a reasonable travelling distance to travel each way during the day.
Mr Needham was referred to the following paragraphs (ii) - (iii) of the Track & Welding Division Monetary Payments Policy:
ii) Travelling Time
For travelling time where a company vehicle is not provided for travel to and from a specific site the following allowances will apply:
Type Distance from Base One off Shift Rate
Travel Time 1 0 – 49km $30.00
Travel Time 2 50 – 99km $45.00
Travel Time 3 100km plus $78.00
iii) Meal Allowance
A meal allowance will be provided where the work shift exceeds more than 10 hours and meals are not provided onsite free by either the company or the client. The following meal allowance will be paid subject to authorisation for you (sic) Line Manager with the required timesheet and necessary back up.
·$20.00 per shift
(JCB 132-133).
Mr Needham agreed that the Plaintiff would be paid a daily travelling and meal allowance based on the above. Mr Needham said the travel allowance would be based on the distance travelled from the Plaintiff’s home address in Preston to the job site. An allowance for accommodation would not be paid if the Plaintiff was able to travel back to his home during the day.
Mr Needham agreed the Plaintiff would be paid $160 per day if he worked further afield, regardless of whether it was in Victoria or Tasmania.
Mr Needham was referred to the text messages between himself and the Plaintiff:
·On 27 January 2022, the Plaintiff sent the following message to Mr Needham at 1.23pm:
Hi mate got a msg regarding (sic) work with mtm im keen to start.
·Mr Needham responded at 2.55pm:
Thanks first weekend is the 11th feb and ongoing from then. I will give you a call tomorrow morning.
(JCB 163).
Mr Needham did not have the above texts on his phone but did not dispute that the texts had been sent. Mr Needham said he did not think any work resulted for the Plaintiff following the text messages.
Mr Needham agreed that the reference to ‘mtm’ was a reference to MTM if the work had gone ahead. Mr Needham was asked whether it was his intention that the Plaintiff would have been able to work on the project from 11 February 2022 if it had gone ahead. Mr Needham could not say and said the Plaintiff might not have worked on the project because it would have depended on the skill set and what was happening. Mr Needham said the message was reaching out to everyone to see what was happening.
Mr Needham was asked about the conversation he had with the Plaintiff sometime in May or June 2022 with respect to the Plaintiff working in Tasmania. It was put to Mr Needham that the Plaintiff discussed about going to work in Tasmania for a 13-day block with 8 days off, but that there was no discussion about how long the Plaintiff would continue working there.
Mr Needham disagreed. He said he would always have discussed how long the Tasmanian work was going to be for. Mr Needham said he would not have hired someone for only 13 days’ work on a project if the work was ongoing. Mr Needham said there would always have been a discussion about a project involving ongoing work if that was the situation with that project. Mr Needham rejected the proposition that this answer was inconsistent with his earlier evidence concerning the employment contract. Mr Needham said the Defendant would have a set number of people to use if the work was ongoing.
Mr Needham agreed that the Plaintiff was not committed to work for the Defendant beyond a 13-day block.
Mr Needham was asked whether the Plaintiff expressed a preference to work in Victoria rather than Tasmania when the Plaintiff had the conversation with him. Mr Needham said the Defendant did not have any work in Victoria at the time of the conversation. It was put to Mr Needham that the Plaintiff had sent an earlier text message with respect to work with MTM. Mr Needham said the Plaintiff agreed to work in Tasmania during the conversation and he could not recall what the Plaintiff had said earlier.
Mr Needham agreed the Plaintiff had issues with a hire car from Europcar when he got to Tasmania. The Plaintiff sent a text message to the Defendant’s Dingley office on 16 June 2022. Mr Needham said the Defendant had a national account with Europcar.
Re-examination of Mr Needham
Mr Needham said the Defendant would have continued to offer work to the Plaintiff even if the incident involving Mr James had not occurred on 20 July 2022.
Mr Needham said the Defendant did not have any intention of changing the constitution of the Tasmanian workforce prior to 20 July 2022.
Prior to 20 July 2022, Mr Needham said he had not been told by the Plaintiff, or anyone else, that the Plaintiff did not intend to continue working for the Defendant on the Tasmanian contracts.
Mr Needham was asked what he meant when he had agreed earlier that the Plaintiff was part of the Defendant’s Victorian workforce. Mr Needham said the Defendant had workers who would fly in and fly out of Tasmania to work. The Defendant did not have the workers in Tasmania, who had all the skills needed to work in Tasmania, so would have to use workers from Victoria. Mr Needham said these workers were based in Victoria because that was where they lived.
Mr Needham said, as of May 2022, the Defendant’s principal place of business for their rail infrastructure division was Tasmania because all the Defendant’s rail work was in Tasmania.
In answer to a question from the Court, Mr Needham said the Defendant’s Dingley office was still the main port of call with respect to administration. Mr Needham said everything else would go through the Defendant’s Superintendent and Supervisor in Tasmania. Mr Needham said he was based in Victoria and looked after all the States but travelled to Tasmania a lot.
Further cross-examination of Mr Needham
Mr Needham said, because the Defendant’s rail contracts were based in Tasmania at the time, the Defendant’s depot in Launceston was the Defendant’s principal place of business.
It was put to Mr Needham that the Plaintiff was employed by the Defendant and that the Defendant had other operations outside Tasmania in other states. Mr Needham agreed that the Head Office of the Defendant for all the divisions was in Dingley.
Documentary Evidence
Counsel for the Plaintiff objected to the Interrogatories on behalf of the Plaintiff and the Defendant, being tendered as part of the Amended Joint Court Book. The objection had not been raised during the running of the proceeding.
The Court allowed the documents to be tendered as part of the Joint Court Book.
The Legislation
Section 37 of the WIRC Act is the governing provision. The relevant parts are:
(1) There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.
(2) The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation under this Act in respect of employment that is connected with this State.
(3) A worker’s employment is connected with –
(a) the State in which the worker usually works in that employment; or
(b) if no State or no one state is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s place of business in Australia is located.
…..
(5) If no State is identified under subsection (3) or, if applicable, subsection (4), a worker’s employment is connected with this State if –
(a) the worker is in this State when the injury happens; and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer over the preceding 12 months and the intentions of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period not longer than 6 months.
The Court must also determine the State with which the worker’s employment is connected in accordance with s37 of the WIRC Act and cause that determination to be entered in the records of the Court (s314(1)(a) and (b) of the WIRC Act).
History of the legislation
As to the history of Section 37 of the WIRC Act, Section 80 of the Accident Compensation Act (Vic) (the AC Act) was the section’s predecessor and is identical in its terms. Section 80 was inserted to the AC Act as part of various other associated provisions effective as of 1 September 2004. Mr Hulls was the Minister at the time and, in the second reading speech said:
Consistent with the government’s longstanding agreement in principle to develop a framework for coverage of workers operating temporarily in another jurisdiction. Victoria agreed to pursue complementary legislation with New South Wales and Queensland following the Workplace Relations Ministers Council in May 2002. Subsequent to this the other states and territories have also agreed to work toward the introduction of similar legislation.
To this end, the Bill will implement cross-border arrangements for workers’ compensation to:
·reduce the need for employers to obtain workers’ compensation coverage for a worker in more than one jurisdiction at the one time and to allow employers to readily determine in which jurisdiction to insure their workers;
·ensure that workers working temporarily in another jurisdiction have access to workers’ compensation entitlements available to their “home” jurisdiction including whatever arrangements apply in relation to common law; and
·provide certainty for workers as to their workers’ compensation entitlements.
(See the Second Reading Speech for Act 95 of 2003 delivered on 16 October 2003).
The Law
Counsel have provided written submissions as to the law. There is a common thread in the submissions as to the relevant law. What differs in the respective submissions is how the law should be applied to the facts of this case.
Both Counsel agreed that where a worker ‘usually works in that employment’ and is ‘usually based for the purpose of that employment’ will be dependent upon the facts of each particular case.
Both Counsel also accepted that the observations in Avon Products Pty Ltd v Magrit Falls [2010] ACTCA 21 (Avon) as to the test for establishing the state of connection provided by s37(3) of the WIRC Act is a cascading test. In applying the legislative tests:
‘…it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer it is necessary to move onto the next test.
(at [10])
With respect to the meaning of ‘that employment’ (section 37(3)(a) and (b) of the WIRC Act), the decision of Woodgate v Busicom Solutions Pty Ltd (VICMC, Magistrate Wright, Case no X01992590, delivered 13 February 2009 unreported) (Woodgate) is relevant. Whilst Magistrate Wright’s decision concerned the operation of s80 of the Accident Compensation Act 1985 (Vic) (the AC Act), as previously stated the section is identical to s37 of the WIRC Act.
In Woodgate, the worker sustained an injury while working in Victoria, which was one of six discrete jobs he did for the employer. Each job was for a limited period. Magistrate Wright considered that the worker’s claim form and pleadings as to the date/s of injury, as well as the terms and conditions of the worker’s agreement as a sub-contractor with the employer, were relevant to determining the meaning of ‘that employment’ for the purpose of s80(3)(a) and (b) of the AC Act. On behalf of the employer, it was submitted that the period of employment should be looked at in its entirety, that is all six jobs looked at collectively, Magistrate Wright found that the relevant employment was the discrete job performed in Victoria during which the injury occurred.
In reaching his decision, Magistrate Wright also stated that a worker’s pre-injury work situation should be the focus of an injury under s80(3)(a) and (b) of the WIRC Act, considering the focus on the pre-injury situation in s 80(6) of the WIRC Act.
Section 80 was considered by the Supreme Court of Victoria in Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102 (Wadley). The worker was a truck driver who worked both in Victoria and NSW, so the matter fell for determination under s80(3)(c) on the basis that the Defendant’s principal place of business was in Victoria.
In relation to the construction of the term ‘connected,’ Williams J stated the following at [22]:
Whilst the matter is not the subject of binding authority, consistently with those dictionary definitions, the expression ‘usually works’ in comparable provisions in other States and Territories has been interpreted on the basis that ‘usually’ means ‘customarily’ ‘frequently’ or ‘regularly’ and does not involve a quantitative test. Indeed, sub-s 80(3)(b) appears to contemplate that there might be two states in which the worker ‘usually works’ within the meaning of sub-s (a). If the comparison were quantitative, it is difficult to see how two States could each qualify.
Williams J stated that the worker should be regarded as having usually worked in both NSW and in Victoria, after having regard to where he:
(a)commenced and generally finished his work;
(b)obtained instructions;
(c)conducted his work duties;
(d)delivered his completed paperwork to allow his remuneration to be calculated;
(e)applied for his job, had training and to have his truck serviced, maintained, and repaired, as well as to consult his manager in relation to his job.
[at 24].
Section 80(3)(a) and (b) of the AC Act was also considered by Carmody J in East v AWMA Pty Ltd & Victorian Workcover Authority [2013] VCC 637 (East). In that case the worker was an installer of irrigation gates and ‘usually worked’ in both Victoria and NSW. The worker’s contract of employment stipulated his place of employment as Victoria. The employer directed his work from Cohuna in Victoria and the worker attended both the Cohuna base and the Deniliquin, NSW depot in the course of his work.
In East, His Honour set out the considerations to be weighed in determining ‘usually works’ and ‘usually based’ for the purposes of s80(3)(a) and (b) of the AC Act.
At [21], His Honour observed that ‘[t]he phrase ‘usually works’ has been held to mean ‘customarily’, ‘frequently’, ‘regularly’ or ‘habitually’ works. It does not involve a quantitative test of exactly how many days the plaintiff works at one place or another.’
His Honour further observed at [28], that ‘[w]hilst the mathematical calculation of days worked is not determinative of where a worker usually works, it is a factor to take into account’.
In East, His Honour held that the worker usually worked in both Victoria and NSW having regard to where;
(a)he actually worked;
(b)he received directions from the employer;
(c)he attended in the course of his work for the employer;
(d)the contract of employment state that the employment was based;
(e)the worker lived;
(f)the worker worked in the year prior to the injury;
(g)the worker was meant to work.
[at 34].
At [35], His Honour set out the considerations to be weighed in determining where the worker was ‘usually based’ for his employment:
(a)the location in the contract of employment;
(b)the location at which the worker routinely attends in the course of his employment to receive instruction, material and equipment;
(c)the location where the worker reports in relation to his employment; and
(d)the location from where the worker’s wages are paid.
At [37], His Honour stated:
The location that the plaintiff routinely attended in the course of his employment depended in large part on where he was actually working at any given time.’
In Wadley, Williams J also considered the above four factors referred to by Carmody J were relevant in determining where a worker is ‘usually based’ for the purpose of s80(3)(b) of the AC Act (at [32]).
Both Counsel have referred to judgements from other jurisdictions where the state of connection provisions in those jurisdictions were identical to s37 of the WIRC Act. Whilst they do not specifically refer to the decisions of East and Wadley, they are consistent with the principles enunciated in those judgements. A summary of those decisions can be found in Thomas v CGU [2020] TASSC 38 (Thomas) at [22]:
The Tribunal noted the paucity of cases in this jurisdiction on the matter of the state of connection, and identified the principles it considered applicable based upon a survey of cases across jurisdictions, where the provision is mirrored:
“43 The Tribunal has only produced a few prior decisions which have considered the State of connection. One such decision is Ron Gee Enterprises v V [2005] TASWRCT 41 - however because similar legislation has been introduced in a number of other States there are decisions in those States which are relevant to an interpretation of certain terms used in s 31A(3) and the operation of the tests which are set out in that subsection. The principles derived from those cases are as follows:
·Regard should always be had to the terms of the contract of employment: Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83 at [60].
·Section 31A(3) provides a sequential or cascading series of steps or tests for determining the State of connection: Ethic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186 at [52] and Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 at [15].
·The sequential or cascading approach means the tests are not applied together. As explained in Avon Products Pty Ltd v Falls [2010] ACTCA 21 at [10], ‘…if the first test provides an answer, then that that is the end of the matter, but if not, the next test is applied and failing an answer emerging from that test, the third test determines the State or Territory of connection. This approach is significant, because it means that in applying each of the first two tests, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer, it is necessary to move on to the next test.’
·The term ‘usually works’ in s 31A(3)(a) is not synonymous with where the worker ‘works for the majority of time’: Tamboritha Consultants Pty Ltd (supra) at [76]. Instead the term should be interpreted as meaning where the worker habitually or customarily works or where he works in a regular manner: Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 at [26].
·The fact a worker’s time is predominantly spent in one State does not necessarily mean that State is the only State in which the worker ‘usually works.’ The worker will usually work in more than one State if she/he habitually or customarily works in a second State. In such cases there will be no one state identifies as the State where the worker usually works: Ferguson v Workcover Queensland [2013] QSC 78 at [34].
·That for the proviso stipulated by s 31A(6)(b) to have any work to do, any temporary arrangement contemplated by that provision must be seen as part of a longer or indefinite period of employment: Klemke v Grenfell commodities Pty Ltd [2011] NSWWCCPD 27 at [80].
·The use of the term ‘usually based’ in s 31A(3)(b) suggest it has a difference meaning to the term ‘usually works’ in s 31(3)(a): Tamboritha Consultants Pty Ltd v Knight (supra) at [80]. However, they may coincide: Martin v RJ Hibbens Pty Ltd (supra) at {53].
·The type of matters contemplated by the expression ‘usually based for the purposes of the employment’ referred to in s 31A(3)(b) includes the work location specified in a contract of employment, the location a worker routinely attends to receive directions or collect materials or equipment in relation to the works, the location the worker reports to in relation to the work and the location from which his wags are paid: Tamboritha consultants Pty Ltd v Knight (supra) at [83]: [Footnotes omitted.]
In Hall v Joblink [2023] VMC 8 (Hall), the worker was an interstate truck driver. Magistrate Wright said the parties agreed that the prime consideration was the worker’s employment prior to the incident on 21 December 2020 at 6.30am in Victoria, the worker having commenced employment the previous day in NSW at about 12.30pm. However, both parties agreed that ‘regard must be had to … the intentions of the worker and employer’ under s37(6). Those intentions were evidenced by the events and the dealings of the parties over the balance of the period of employment until the worker ceased work on 5 January 2021.
Magistrate Wright found that the truck driver usually worked in both Victoria and NSW and was unable to identify any one State where he was usually based. The proceeding was determined under s37(3)(c) of the WIRC Act, based on the principal place of business being in NSW. In considering s37(3), at [64], Magistrate Wright said it was necessary to consider the meaning of ‘that employment’ in s37(3)(a) and 37(3)(b) and ‘regard must be had to …the intentions of the worker and the employer’ pursuant to s37(6).
Magistrate Wright said it was also necessary to consider the meaning of the word ‘usually’ as set out in ss37(3)(a) and 37(3)(b) of the WIRC Act in accordance with the principles enunciated by Justice Williams in Wadley (at [65]). Magistrate Wright said, on the facts and looking at the pre-incident employment in isolation, the worker worked in both NSW and Victoria. At [68], Magistrate Wright said:
It is obvious that he drove a considerable distance in both Victoria and NSW on those two dates. He actually worked in both States. Whether or not he drove a longer distance in Victoria or NSW in those two days, I do not believe it can be said that he ‘usually’ worked in Victoria or NSW in those two days in the sense that he ‘customarily’, ‘frequently’ or ‘regularly’ worked in either of those two States as opposed to the other State. As stated above, the test is not a quantitative one.
Magistrate Wright then had regard ‘to the intentions of the parties.’ Submissions were made as to the worker’s employment activities and situation duties between 21 December 2020 and 5 January 2021. Magistrate Wright found:
·The worker continued to work in both Victoria and NSW;
·As observed by Judge Carmody in East, the mathematical calculation of days worked was not determinative of where a worker usually worked but was a factor to be taken into account;
·It could not be said that the distance driven by the worker, or where he spent the most nights on the road, over that time meant the worker usually worked in Victoria as opposed to NSW;
·The worker agreed the defendant instructed him about his work from in or about Griffith, NSW and he attended there almost every working day for work purposes;
·Most of the loads were taken from the Griffith area and delivered in Victoria and NSW;
·From to time to time the worker loaded up in Victorian towns and delivered the items to the depot in Griffith or occasionally other towns in Victoria;
·The worker’s relevant paperwork was delivered to the Griffith depot where his wages were processed and paid;
·The worker agreed he was supervised, managed, and directed in his work from the Griffith depot;
·The worker’s truck was once repaired in Griffith;
·There was no contract of employment setting out that the worker’s place of employment was in either Victoria and/or NSW;
·In the claim form the worker said his usual place of employment was the motel where he lived at in Echuca on the basis that he parked his truck there on weekends and holiday periods rather than take it back to Griffith;
·The fact that he parked his truck from time to time in Echuca did not mean his ‘usual workplace’ was in Victoria.
[70-73]
In all the circumstances, Magistrate Wright found that the worker usually worked in both Victoria and NSW and that he had then had to consider where the worker was ‘usually based’ for the purposes of that employment pursuant to s37(3)(b) of the WIRC Act.
Magistrate Wright said it was difficult to see how the worker was usually based in Victoria for the purposes of that employment during the limited period prior to the incident on 21 December 2020.
Both parties agreed that regard should be had to the intentions of the worker and employer as to the future of the employment as evidenced by what occurred in the period up to the cessation of employment on 5 January 2021
In this regard Magistrate Wright considered the factors referred to above in [70]-[73]. Magistrate Wright did not accept the submission that the worker’s understanding was that his job was ‘based in Victoria’ which was why he took the job. Magistrate Wright said the worker’s understanding was more that his place of residence was to continue to be based in Victoria rather than the employment itself. Magistrate Wright did not accept that such an honest and genuine belief would make his employment based in Victoria.
At [78-83], Magistrate Wright said:
As Justice Williams pointed out in Wadley, it could be said that his employment was usually based in Victoria in the sense that ‘… his truck provided him with the mobile facilities required for the performance of his work, given its particular nature.’
Both Applegarth J in Ferguson and Judge Carmody in East refer to the fact that the location at which the worker routinely attends during the term of employment to receive directions or collect material or equipment may be highly relevant.
In the present case all this occurred in NSW save for possible exception that occasionally Mr Hall would collect material such as chicken meat or fertiliser from some premises in Victoria and occasionally would deliver that material to other premiss in Victoria. However, there was nothing to indicate that those points of collection or delivery in Victoria were owned or operated by the defendant as opposed to as third-party customer or client.
Importantly in this case, as opposed to the factual situations in East and Wadley, there is no evidence that the defendant had any base, depot or premises in Victoria where Mr Hall would attend save for the circumstances set out in the previous paragraph. However, the truck was a base for the performance of his duties in Victoria.
Further, as set out above, Judge Carmody in East looked at three further considerations to be weighed in determining where a worker is usually based. He referred to the location of the contract of employment, where he reported in relation to his employment and the location where his wages were paid. In the present case all this occurred in NSW, and more particularly in Griffith.
Overall, I am unable to identify the one State where he was usually based for the purpose of his employment pursuant to s37(3)(b) of the Act. As I have expressed above, there are relevant factors going to his employment being ‘usually based’ in both Victoria and NSW. It could not be said that he ‘customarily,’ ‘frequently’ or ‘regularly’ was based in one State as opposed to both States. The test is not a quantitative one.
Based on his findings, Magistrate Wright then had to consider s37(3)(c) and determine in which State was the employer’s principal place of business. In the agreed statement, the parties agreed that the defendant’s principal place of business was in Griffith, NSW. In the circumstances Magistrate Wright found that the defendant’s principal place of business in Australia was in Griffith, NSW and the worker’s employment was therefore connected with NSW and not Victoria.
For completeness, the Court repeats the reference to Ferguson v Workcover Queensland [2013] QSC 78 (Ferguson), Applegarth J agreed with the four factors previously referred to in paragraph 156 in considering where a worker is ‘usually based’ and added the following:
I add that the place in which the worker’s employer is based may not be the same place in which the worker is based for the purposes of that employment. The place in which the employer chooses to have certain operations for the purpose of administering the contract of employment, for example, for administering payroll, may have little to do with the place at which the employee is based for the purposes of that employment. The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.
Submissions
Both parties have provided substantial written submissions. The Court is of the view that it is necessary to refer to the submissions in detail.
Submission on behalf of the Defendant
Overview
On behalf of the Defendant, Ms Bradey submitted the following:
·The Plaintiff usually worked in his employment with the Defendant in Tasmania under s37(3)(a) of the WIRC Act;
·The plaintiff was usually based in Tasmania under s37(b) of the WIRC Act.
With respect to the intentions of the Plaintiff and the Defendant as required by s37(6) of the WIRC Act, Ms Bradey submitted that the Plaintiff usually, customarily, frequently or regularly worked in Tasmania, as the Plaintiff had only worked for the Defendant in Tasmania over the 12 months preceding the date of injury. Regard should not be had to any work performed by the Plaintiff for the Defendant in Victoria as that work had occurred more than 12 months prior to the date of injury. Furthermore, the nature of the Defendant’s rail business had changed since then and the Defendant no longer had any rail project work based in Victoria.
Subsection 37(6) of the WIRC Act further required that regard must not be had to any temporary arrangement under which an employee worked in a state for a period of not longer than 6 months. Ms Bradey submitted that the work performed by the Plaintiff in Tasmania was not such a temporary arrangement as:
·The Defendant’s intention was to continue to offer the Plaintiff fly in fly out work in Tasmania;
·The actual fly in fly out work continued until the completion of project C521 in August/ September 2023 which was a period of more than 6 months.
Ms Bradey referred to the decision of Woodgate and Magistrate Wright’s comments [at page 10]:
Although the employment was described in the agreement as being ‘as a temporary’ and was in fact less than 6 months, I believe that this aspect in s80(6) is addressed towards a situation where a worker works almost exclusively in one state on a full time basis and may be sent interstate on a temporary assignment (see, the second reading speech on the relevant bill for Act 95 of 2004 in the Legislative Assembly, delivered on 16 October 2003).
If the above was accepted by the Court, then the question of the State of connection was resolved as Tasmania and the Plaintiff had no entitlement to compensation in accordance with s 37(1) of the WIRC Act.
If the Court did not accept that the Plaintiff:
·usually worked in Tasmania under s37(3)(a) of the WIRC Act; and
·was usually based in Tasmania under s37(3)(b) of the WIRC Act:
It was submitted that the Plaintiff usually worked and was usually based in both Victoria and Tasmania. The Court then had to consider in which State the Defendant’s principal place of business in Australia was located under s37(3)(c) of the WIRC Act.
Ms Bradey submitted the principal place of business of the rail business of the Defendant was at its depot in Launceston, Tasmania. The employment of the Plaintiff was therefore connected with Tasmania pursuant to s37(3)(c) of the WIRC Act Vic and the Plaintiff had no entitlement to compensation under the WIRC Act.
If the Court did not accept that the principal place of business of the Defendant’s rail business was Launceston, Tasmania, Ms Bradey submitted that it was both Victoria and Tasmania. If that was the case, then the Court must consider the State in which the injury occurred pursuant to s37(5) of the WIRC Act. This was at the defendant’s work premises in Tasmania.
‘That employment’
The Defendant submitted that ‘that employment’ for the purposes of s37(3)(a) and (b) of the WIRC Act was the Plaintiff’s employment on projects C509 and C521 for TasRail, rather than including the Victorian projects on which he worked between 4 October 2019 and 6 December 2020. This was based on the following:
·The Plaintiff was employed on a casual basis;
·Whilst the Plaintiff’s overriding employment relationship with the Defendant was governed by the employment contract signed in October 2019, the Plaintiff was engaged by the Defendant under that contract from time to time according to the needs of the Defendant’s business i.e., when there was a need for labour on a particular project;
·Each period during which the Plaintiff worked for the Defendant was a discreet period of work on a discreet project. Each period of employment was subject to a separate offer of work by the Defendant, and an acceptance of that work by the Plaintiff;
·The offer of work to the Plaintiff in June 2022 constituted a separate offer of work by the Defendant which was accepted by the Plaintiff. The offer of work was on the basis that the only work available was based in Tasmania on a fly in fly out basis;
·This was consistent with the approach taken by Magistrate Wright in Woodgate in that the relevant employment was the discrete job that the Plaintiff was performing in Tasmania when the injury occurred;
·Prior to being offered the fly in fly out work in June 2022, the Plaintiff last worked for the Defendant on 20 December 2020. In the period between December 2020 and June 2020, the Defendant’s rail business changed and the Defendant no longer had rail projects based in Victoria;
·It would be non-sensical for ‘that employment’ to encompass employment that was no longer available (being employment on rail projects based in Victoria) and which has not been available at any time since the date of the injury to the present time.
The Defendant submitted that the intention of the parties, as evidenced by the events and dealings of the parties in 2022, was consistent with the expression ‘that employment’ being confined to the Plaintiff’s employment on projects C509 and C521 for TasRail on the basis that:
·The only work offered to the Plaintiff by Mr Needham was based in Tasmania;
·Mr Needham told the Plaintiff in June 2022 that the only work available was work in Tasmania on a fly in-fly out basis and that there was no work available in Victoria;
·The Plaintiff accepted the Defendant’s offer of fly in fly out work in Tasmania.
It was further submitted that, even if the entirety of the Defendant’s employment from 4 October 2019 to 20 July 2022 was taken into consideration, the Plaintiff’s pre-injury period of employment for the Defendant from 16 June 2022 in Tasmania was the most important employment in light of the focus in s37(6) of the WIRC Act (see Woodgate at pages 9 and 10). It was that employment in Tasmania which should be interpreted as ‘that employment.’
‘Usually works’
If the finding of the Court was that ‘that employment’ was confined to the Plaintiff’s employment on projects C509 and C521 for TasRail, it would follow that the Plaintiff ‘usually worked’ in Tasmania and, pursuant to s37(3)(a) of the WIRC Act, the Plaintiff’s employment was connected with Tasmania and not Victoria.
If the finding of the Court was that ‘that employment’ encompassed all the Plaintiff’s employment with the Defendant, it was submitted that it was necessary to examine where the Plaintiff ‘usually worked.’
The Defendant stated that this was not a quantitative test. Also relevant in determining where the Plaintiff usually worked was the balance of the period of the Plaintiff’s employment with the Defendant, and the intention of the parties as to the future of his employment (s37(6) of the WIRC Act and Woodgate).
The Defendant submitted that the Plaintiff usually worked in Tasmania for the following reasons:
·As of June 2022, and since, the Defendant has not had any rail projects in Victoria. The Plaintiff had not performed any work for the Defendant in Victoria beyond 20 December 2020. That the Plaintiff had worked for the Defendant in Victoria previously was merely a historical fact, rather than being determinative of where the Plaintiff usually worked. To determine where an employee usually works based on historical and dated events, ignored the reality of the situation that existed, namely that the Defendant had no rail project work in Victoria and, while the Plaintiff had historically worked for short periods in Victoria, he had not done so for over a year and a half prior to the date of injury;
·It was the intention of the Defendant that, but for the injury, the Plaintiff would have continued to be offered fly in fly out work based in Tasmania, and that the work would have continued until September 2023;
·If the Plaintiff had accepted ongoing work with the Defendant, it could only have been work in Tasmania;
·The Plaintiff obtained his work instructions from the Defendant’s employees, Paul Tunney, and Jason James, both located in Tasmania;
·The Plaintiff obtained his work materials on site in Tasmania.
Whilst the Defendant’s administrative arrangements were handled from its office at Dingley Village, Victoria, the Defendant referred to the decision of Ferguson at [36]:
‘[t]he place in which the employer chooses to base certain operations for the purpose of administering the contract of employment, for example, for administering payroll, may have little to do with the place at which the employee is based for the purposes of that employment. The location at which the worker usually attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.’
The Defendant submitted that the location for the Plaintiff was Tasmania.
Having regard to the Plaintiff’s work history with the Defendant over the preceding 12 months and the intentions of the Plaintiff and the Defendant as required by s37(6) of the WIRC Act, Ms Bradey submitted it was clear that the Plaintiff usually, customarily, frequently or regularly worked in Tasmania, as he only worked in Tasmania over the 12 months preceding the date of injury. The Plaintiff’s work for the Defendant in Victoria should not be considered because it occurred more than 12 months prior to the date of injury. Another reason to disregard the Plaintiff’s work in Victoria was the fact that the nature of the Defendant’s rail project work had changed, and the Defendant no longer had any rail project work based in Victoria.
Section 37(6) of the WIRC Act also required that regard must not be had to any temporary arrangement under which an employee works in a state for a period not longer than six months.
In the Plaintiff’s Amended Further and Better Particulars in response to the Defendant’s Notice dated 2 May 2023 (JCB 26-28), the Plaintiff stated that the Plaintiff’s arrangement to perform fly in fly out work in Tasmania was a ‘temporary arrangement for not longer than six months’ and should be disregarded.
The Defendant submitted that the work performed by the Plaintiff in Tasmania was not a temporary arrangement for not longer than six months as:
·The Defendant’s intention was to continue to offer the Plaintiff fly in fly out work which meant the work was not a temporary arrangement;
·The fly in fly out work continued until the completion of project C521 in September 2023, which was a period of more than six months.
Whilst the Plaintiff was a casual employee and could have declined future fly in fly out work in Tasmania, the Defendant submitted that this did not characterise the work as a ‘temporary arrangement.’ This would lead to the conclusion that all casual work was a ‘temporary arrangement’ and would give s37(6) of the WIRC Act no work to do in respect of a large portion of the Victorian workforce. The Defendant submitted that such an interpretation of the expression ‘temporary arrangement’ should not be preferred over an interpretation that gave the expression work to do in the case of the casual workforce. In any event, under cross-examination, the Plaintiff said that he would have continued working for the Defendant in Tasmania for as long as work was available, and the Defendant would still have him (T35:34-39). This is inconsistent with the employment in Tasmania being described as a temporary arrangement for not more than six months.
The Defendant referred to Woodgate and the comments of Magistrate Wright (at page 10):
Although the employment was described in the agreement as being “as a temporary” and was in fact less than six months, I believe this aspect in s80(6) is addressed towards the situation where a worker works almost exclusively in one state on a full time basis and may be sent interstate on a temporary assignment (see, the second reading speech on the relevant bill for Act 95 of 2004 in the Legislative Assembly, delivered on 16 October 2003).
It was submitted that the Defendant’s position in seeking to split off the operations of one portion of the business and ignore the operations of the Defendant’s business overall was misconceived. Even within the Rail or Infrastructure Division, the location where work was performed would vary from time to time and had included Victoria. The enquiry should not be directed to where the location where the Defendant performs contracts at particular points in time, let alone one division within the Defendant’s overall business.
Mr Holloway, the CEO of the Defendant was based at Dingley Village. When not travelling, Mr Needham was also based at Dingley Village. The Operations Manager, Mr Casey, and other staff supporting management, administration and human resource functions were also based at Dingley village.
The Defendant’s reliance on s37(5) of the WIRC Act could only occur where there was no clear answer under s37(3) of the WIRC Act. The fact that the Plaintiff’s injury occurred in Tasmania was irrelevant to the Court’s task under s37(3) of the WIRC Act. If there was no clear answer under s37(3)(a) and (b) of the WIRC Act, then the matter was conclusively determined by s37(3)(c) of the WIRC Act as it was submitted that the Defendant’s place of business was at Dingley Village, Victoria.
Section 37(5)
Section 37(5) of the WIRC Act can only apply when there is no clear answer under s37(3) of the WIRC Act. The Plaintiff accepted that the Plaintiff’s injury occurred in Tasmania but submitted that this was irrelevant to the Court’s task under s37(3) of the WIRC Act (see Hall at [62] and [67]). If there was no clear answer under s37(3)(a) and (b) of the WIRC act, then the matter was determined by s37(3)(c) of the WIRC Act as the Defendant’s principal place of business was at Dingley village, Victoria.
Reply submission on behalf of the Defendant
The High Court decision of Jamsek concerned whether two truck drivers were employees or independent contractors. The decision did not address any aspect of s37(3) of the WIRC Act and is therefore of limited, if any assistance, in interpreting the section to the facts of this case.
The Defendant does not accept that the decision of Woodgate was ‘clearly distinguishable’ from the facts in this matter. The absence of a written contract of employment in Woodgate does not deny the relevance of the findings and conclusions of Magistrate Wright.
The Plaintiff also seeks to elevate the employment contract between the parties beyond the significance which ought naturally to be afforded to it. The Plaintiff seeks to discount, if not ignore, Clause 6.3 of the contract which states ‘[d]ue to the nature of the role and the business, you will be required to travel and work at various sites, as reasonably directed by the Employer’ (JCB 100). It was submitted that the contract of employment contemplates that the place where an employee ‘usually works’ or is ‘usually based’ may be different from the Defendant’s current primary business location, as set out in Item 6 of the Schedule to the employment contract.
The Plaintiff’s submissions that the Plaintiff directly reported to the Defendant’s staff at Dingley Village was an overstatement of the relationship. The Defendant submitted the Plaintiff’s interactions were confined to administrative matters, such as signing the employment contract and the initial allocation of work in respect of each contract on which he was engaged, together with any payroll or other administrative tasks that needed to be performed in respect of any of the Defendant’s employees, regardless of where they usually worked or were usually base.
Furthermore, the instruction, direction and supervision of the Plaintiff’s tasks and duties came exclusively form Jason James and Paul Tunney, both of whom were located in Tasmania.
The Defendant disputes that Mr Needham accepted that the Defendant’s base location for the purposes of this employment was at Dingley Village, Victoria. The following exchange took place (at T55: 34-39):
Mr Macaskill: All right. So the effects of those clauses in that the base location for the purposes of this employment is at Dingley Village head office. But the plaintiff would be sent to work at various sites from time to time. Do you accept that?
Mr Needham: Yes. Correct.
It was submitted that Mr Needham only accepted that the Plaintiff would be sent to various sites from time to time. Counsel for the Plaintiff made a statement about the base location which Mr Needham was not asked about or invited to respond.
The Plaintiff’s preference to work in Victoria; was not a relevant consideration in respect of determining issues under s37 of the WIRC Act. Consideration needed to be given to where the Plaintiff usually worked or was usually based rather than where he preferred to usually work or be usually based.
The fact that the plaintiff worked for a number of rail companies and would go to different projects was also irrelevant to where the Plaintiff usually worked or was usually based for the purposes of s37 of the WIRC Act.
The Plaintiff’s submission that Mr Needham’s evidence was that the Plaintiff was part of the Defendant’s Victorian workforce was incorrect. Mr Needham was referring to the Plaintiff’s State of residence as being Victoria rather than making any concession that the Plaintiff’s employment was connected to the State of Victoria.
The Plaintiff submitted Mr Needham’s evidence was unclear as to whether he discussed with the Plaintiff about there being an ongoing arrangement or commitment for work in Tasmania. The Defendant submitted both Mr Needham and the Plaintiff gave evidence as to there being an ongoing arrangement for the Plaintiff to work in Tasmania. The Plaintiff gave the following evidence in cross-examination [T-35: 34-39]:
Ms Bradey: And I want to put to you that you would have continued working in Tasmania on the 13 day on 8 day off basis for as long as the work was available, for as long as you were happy to do it, and for as long as Global Rail was happy to have you. Do you agree with that?
Mr Nasery: To some extent, yes.
The Plaintiff criticised Mr Needham’s evidence when that the Plaintiff ‘was happy with the work over there and that ‘He was enjoying it.’ The criticism was misplaced in that the Plaintiff had not yet travelled to Tasmania, let alone started working there. It was clear in the transcript that Mr Needham was giving evidence about his discussion with the Plaintiff when he first offered him the Tasmanian work. The Plaintiff was happy to accept the work that was being offered to him and that there was work available that he could do. Mr Needham’s reference to the Plaintiff enjoying the work was after the Plaintiff had commenced working in Tasmania.
The Plaintiff submitted the Plaintiff gave evidence that, while he was happy to work in Tasmania for a short period, he was not intending to stay there long-term, and his intention was to return to work in Victoria with the Defendant and other employers.
With respect to that submission, the Defendant submitted that, at no stage did the Plaintiff give evidence that he was not intending to continue working in Tasmania on a long-term basis. Furthermore, any intention of the Plaintiff to return to work in Victoria had to be subject to there being work available in Victoria. Mr Needham gave evidence that there was no such work available in Victoria. There was also no evidence before the Court that other employers had work in Victoria or when such work might become available.
In the absence of work being available in Victoria, the Defendant submitted that, in all likelihood, the Plaintiff would have continued working, but for the injury, in Tasmania.
On the facts of this case, the Defendant submitted it was not correct for the Plaintiff to state that the location of the Defendant’s available work may change from time to time, depending on the location of the Defendant’s rail, or infrastructure, projects at a particular time. The evidence was that the Defendant had not had any Victorian based work since mid-2022, and therefore the availability of any such work had ceased.
The Defendant submitted that, even if the term ‘that employment’ referred to the entirety of the Plaintiff’s employment with the Defendant, the Court should give weight to the fact that there was no longer any work available with the Defendant in Victoria and there had not been any work available since mid-2022. The fact that the Plaintiff had once worked in Victoria should not prevent a finding that his employment was connected with the State of Victoria for the purposes of s37 of the WIRC Act.
The Defendant disputed the Plaintiff’s submission that the evidence demonstrated that ‘the Plaintiff did not intend to continue working in Tasmania long-term and certainly not beyond six months.’
The Defendant submitted that the fact that the Defendant only had work available in Tasmania was entirely relevant to the issues concerning s37 of the WIRC Act in this matter and that the Court should give this factor significant weight. Again, the Plaintiff’s reliance on the employment contract was only one of the factors to which the Court ought to have regard.
The Defendant submitted that principles of statutory construction required the Court to give an interpretation to s37 of the WIRC Act Vic that gave it work to do. The Plaintiff’s submission as to ‘temporary arrangement’ would result in s37 being otiose to a large portion of the Australian workforce and ought not to be adopted. The Defendant submitted that it was not asking the Court to fill in gaps in s37 of the WIRC Act, but rather adopt an interpretation of s37 of the WIRC Act that would give it work to do.
The Plaintiff submitted that the Defendant’s submission concerning the Defendant’s principal place of business was misconceived. The Defendant said its submission was consistent with the caselaw which had given a wide meaning to ‘principal place of business.’ It was not simply the State where the registered office was located but now implied it was ‘chief, most important or main place of business from where the employer conducts most of its business.’ (see Martin at [80]).
Anaylsis
As both parties agree, the application of s37 of the WIRC Act was a cascading test and dependent on the facts of each particular case.
I have had regard to the Agreed Facts, the viva voce and documentary evidence and the helpful submissions of counsel.
I make the following comments.
The Plaintiff texted Mr Needham looking for work with MTM in January 2022. Mr Needham replied that there was work available from 11 February 2022 and that he would give the Plaintiff a call.
The Defendant subsequently lost their contract for rail work with MTM which meant that the Defendant no longer had rail work in Victoria.
I accept Mr Needham’s evidence that he had a telephone conversation with the Plaintiff in or about May 2022 about working on rail work in Tasmania from June 2022. I accept Mr Needham’s evidence that he told the Plaintiff that the Defendant had obtained two contracts for rail work in Tasmania and that the rail work would be ongoing for a minimum of a year. I accept Mr Needham’s evidence that he explained the roster system to the Plaintiff and the Plaintiff was happy with the length of the work at the time.
It was put to the Plaintiff in cross-examination that, but for his injury, he would have continued working for the Defendant as long as the work in Tasmania was available. The Plaintiff replied ‘to some extent’ that was correct. I do not accept any suggestion by the Plaintiff that he had reservations about continuing to work for the Defendant in Tasmania if he had not sustained an injury. There is no evidence to the effect that the Plaintiff had work to return to in Victoria, either for the Defendant or any other employer. The Plaintiff’s evidence was that work had been slow before commencing work for the Defendant in Tasmania.
As of mid-2022, the Defendant’s rail contracts were based in Tasmania. The Defendant did not have any rail contracts in Victoria and has not had any rail work in Victoria since then. I accept Mr Needham’s evidence that the Plaintiff was engaged according to the needs of the Defendant’s business and, at the time, that need was because the Defendant had rail contracts in Tasmania and needed workers with a particular skill set.
I find that the Plaintiff’s intention, prior to being injured, was to work for the Defendant in Tasmania on rail projects C509 and C521. I find that the Plaintiff was aware there was ongoing work on a roster basis and that the Plaintiff accepted the work on that basis. I accept Mr Needham’s evidence that it was the intention of the Defendant to employ the Plaintiff for the duration of those two projects. Mr Needham’s evidence was that the Defendant tried to maintain the same workforce for consistency.
The Plaintiff worked for the Defendant for the following periods in Tasmania:
(a) 16 June 2022 to 3 July 2022 on project C509;
(b) 4 July 2022 to 20 July 2022 on project C521. The work on Project C521 continued until August/September 2023.
I make the following findings with respect to those periods of work:
(a) The Plaintiff received his work instructions form the Defendant’s staff located in Tasmania;
(b) The materials used by the Plaintiff were supplied onsite in Tasmania;
(c) The Plaintiff did not report to the Defendant’s office in Dingley Village whilst working in Tasmania;
(d) The Plaintiff reported to the Defendant’s onsite supervisor whilst working in Tasmania;
(e) Mr James was a full-time supervisor for the Defendant and ran the Defendant’s Tasmania crews on a day-to-day basis;
(f) Mr James lived in Tasmania but would sometimes fly to Victoria;
(g) Mr Tunney was the superintendent of the site and oversaw the work and consulted with the TasRail site surveillance manager;
(h) Mr Tunney would fly in fly out from Victoria but would sometimes stay in Tasmania for up to a month at a time;
(i) The Defendant’s workforce in Tasmania consisted of local workers and the fly in fly out workers;
(j) The Defendant’s principal place of business from May 2022 was in Tasmania because that was where the rail work was. The Head Office in Dingley Village provided the administrative back up, but the actual rail work was through the superintendent, Mr Tunney.
Determination of ‘that employment’ for the purposes of section 37(3)(a) and (b) of the WIRC Act
I accept the submission of the Defendant that, for the purposes of s37(3)(a) and (b) of the WIRC Act, ‘that employment’ means the Plaintiff’s employment on projects C509 and C521 and that the Plaintiff’s employment on the earlier projects in Victoria was not relevant.
I do not accept the Plaintiff’s submission that such a finding would fly in the face of the employment contract.
In the Court’s view such a finding is simply common sense based on the facts of this case.
Whilst the employment contract governed the casual employment relationship between the Plaintiff and the Defendant, the facts of this case are such that the Plaintiff only worked for the Defendant when needed. This work was on a particular project from time to time.
I accept the Defendant’s submission that each period of employment was subject to a separate offer of work by the Defendant, and an acceptance of that work by the Defendant. Each period of work was a discrete period which would last for a limited period.
The Plaintiff last worked in Victoria for the Defendant on 20 December 2020. The Plaintiff contacted the Defendant for work in Victoria in February 2022 but there was ultimately no rail work available in Victoria as the Defendant had lost their rail contract with MTM.
The Defendant subsequently obtained a rail contract with TasRail in Tasmania and offered the Plaintiff work in June 2022. The Court is of the view that this was a separate offer of work. The work was in Tasmania because that was where the rail project was, as the Defendant no longer had rail projects based in Victoria.
This analysis is consistent with the approach of Magistrate Wright in Woodgate where he found that the relevant employment was the discrete job performed in Victoria during which the injury occurred. I do not accept the Plaintiff’s submission that Woodgate is distinguishable based on the Court’s analysis of the employment contract in this case.
I do not accept the Plaintiff’s submission that the fact that the location of available work may change from time to time, depending on the location of the Defendant’s rail contracts, does not alter the character of the ongoing employment relationship for casual work. The evidence is clear. The Defendant has not had any work in Victoria since early to mid-2022 and the availability of any such work in Victoria was no longer a factor in work being offered to the Plaintiff in Tasmania.
I accept the Defendant’s submission that it would be non-sensical for ‘that employment’ to include the work that the Plaintiff had performed for the Defendant in Victoria given that the work no longer existed and work in Victoria has not been available at any time since the date of the Plaintiff’s injury.
The Court’s interpretation of ‘that employment’ being confined to the Plaintiff’s employment on projects C509 and C521 is also consistent with the Court’s findings as to the intention of the parties as previously discussed. The intention of the parties was for the Plaintiff to work on the TasRail projects.
On the facts of this case and the authorities referred to in this judgement, the Court determines that the expression ‘that employment’ refers to the Plaintiff’s employment on projects C509 and C521. As a result, it follows that the Plaintiff ‘usually worked ‘in Tasmania. Pursuant to s37(3)(a) of the WIRC Act, the Plaintiff’s employment was connected with Tasmania and the Plaintiff has no entitlement to compensation in accordance with s37(1) of the WIRC Act.
Determination of ‘usually works’ for the purposes of section 37(3)(a) of the WIRC Act
Alternatively, if the Court was to accept the Plaintiff’s submission that ‘that employment’ did include the Plaintiff’s employment with the Defendant in Victoria, the Court would still be of the view that the Plaintiff ‘usually worked’ in Tasmania for the following reasons.
As agreed by the parties this is not a quantitative test. I accept the Defendant’s submission that also of relevance is the balance of the period of the Plaintiff’s employment with the Defendant and the intention of the parties as to the future of his employment (s37(6) of the WIRC Act and Woodgate).
The Plaintiff has not worked in Victoria since 20 December 2020. The Defendant has not had any rail work in Victoria since early to mid-2022 following the loss of the MTM rail contract.
I accept the Defendant’s submission that, the fact that the Plaintiff had previously worked on rail contracts for the Defendant is a historical fact rather than being determinative of where the Plaintiff ‘usually worked.’ It ignores the reality that the Defendant had no rail projects in Victoria and, whilst the Plaintiff may have worked for short periods in Victoria in 2020, he had not done so for over a year and a half prior to the date of injury.
Again, for the consistency of work projects, it was the intention of the Defendant that, but for the injury, the Plaintiff would have continued to have been offered work in Tasmania on project C521. This project continued until August/September 2023.
The only rail work that the Plaintiff could have continued doing for the Defendant, but for the injury, would have been rail work in Tasmania.
The Plaintiff’s work instructions came from Mr Tunney and Mr James who were based in Tasmania.
All the Plaintiff’s work materials were onsite in Tasmania.
The Court also refers to the decision of Ferguson. The fact that the Defendant’s administrative arrangements were performed at their office in Dingley Village, Victoria ‘…may have little to do with the place at which the employee is based for the purposes of that employment. The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant’ [at 36].
Importantly, s37(6) of the WIRC Act requires the Court to have regard to the Plaintiff’s work history with the Defendant over the preceding 12 months and the intentions of the Plaintiff and the Defendant. The Plaintiff only worked for the Defendant in Tasmania in the 12 months preceding his date of injury. As previously stated, the Court has found that it was also the intention of the Plaintiff to have continued to work on project C521 and for the Defendant to have continued to offer him employment but for the injury.
Subsection 37(6) of the WIRC Act also requires the Court to disregard any temporary arrangement under which an employee works in a State for a period of not longer than 6 months.
I accept the Defendant’s submission that the Plaintiff’s work in Tasmania should not be disregarded. The Court has found that the Defendant’s intention was to continue to offer the Plaintiff work in Tasmania on a fly in fly out basis and that work on project C521 continued until August/September 2023. I accept the Plaintiff’s submission that, whilst the Plaintiff could have declined future work in Tasmania, that does not of itself lead to a characterisation of the work as a temporary arrangement as submitted by the Plaintiff. Furthermore, the Plaintiff gave evidence that he would have continued working for the Defendant in Tasmania for as long as the work was available, and the Defendant would still have him (T35: 34-39).
The Court also repeats its earlier reference to what Magistrate Wright said in Woodgate [at page 10].
The Court does not accept the Plaintiff’s submission that the evidence demonstrated that the Plaintiff did not intend to continue working in Tasmania long term and certainly not beyond 6 months. I accept the Defenant’s submission that the evidence ‘does not rise as high as this.’ There was no evidence from the Plaintiff to the effect that he was not intending to continue working in Tasmania on a long-term basis.
Based on the evidence and the authorities referred to in this judgement, the Court is of the view that the Plaintiff usually worked in Tasmania.
Determination of ‘usually based’ in that employment for the purposes of section 37(3)(b) of the WIRC Act
Alternatively, if the Court was of the view that no one State could be regarded as the State in which the Plaintiff usually worked in his employment with the Defendant, the Court would have to determine the State where the Plaintiff was usually based for that employment’ for the purposes of s37(3)(3)(b).
On the facts of this case, the Court has determined that the expression ‘that employment’ refers to the Plaintiff’s employment on projects C509 and C521. As a result, it follows that the Plaintiff was ‘usually based ‘in Tasmania and pursuant to s37(3)(b) of the WIRC Act, the Plaintiff’s employment was connected with Tasmania, not Victoria.
If the Court was incorrect in determining that ‘that employment’ only referred to the Plaintiff’s employment period in Tasmania, the Court would still be of the view that the Plaintiff was ‘usually based ‘in Tasmania for the reasons previously outlined in this judgement.
The Plaintiff relies on the employment contract specifically providing that the Plaintiff was required to work at the Defendant’s ‘current primary business location’ at 5 Plane Tree Avenue, Dingley Village, Victoria. However, as the Defendant submits, the employment contract goes on to state ‘unless otherwise reasonably requested by the employer’ and that ‘due to the nature of the role and the business, you will be required to travel and work at various sites, as reasonably directed by the Employer.’
Importantly, the Court accepts the Defendant’s submission that the Plaintiff did not perform any work duties at the 5 Plane Tree Avenue, Dingley Village. The evidence was that he was requested by the Defendant on each occasion to work at the location of the particular project he was engaged at to perform. The Court accepts the Defendant’s submission that simply because the employment contract provided that the Plaintiff was required to work at 5 Plane Tree Avenue, Dingley Village unless instructed otherwise, cannot be determinative of where the Plaintiff was usually based in circumstances where the Plaintiff never performed any work duties at 5 Plane Tree Avenue, Dingley Village.
The Court does not accept the Plaintiff’s submission that the Defendant’s travel policies and allowances corroborated that the Plaintiff was ‘usually based’ in Victoria. As the Defendant stated, ‘…it would result in those workers who lived in Tasmania who worked on the TasRail projects having Tasmania as the place where the employment is based, and those workers who lived in Victoria but worked in Tasmania on a FIFO basis having Victoria as the place where the employment is based. Such a result cannot be correct. Workers performing the same work for the same employer in the same place should all have the same place where they usually work and place where they are usually based.’
As stated in Ferguson, the location where a worker routinely attended to receive directions and collect materials and equipment was highly relevant in determining where the worker was ‘usually based for the purposes of that employment’ at [36]. On the evidence, the Plaintiff rarely attended the Defendant’s office in Dingley Village or the Launceston depot. He normally received directions and collected his materials or equipment at the location of the project where he was working in Tasmania.
Employer’s principal place of business for the purposes of section 37(3)(c) of the WIRC Act
For completeness, if the Court had been unable to identify a State pursuant to s37(3)(a) or (b) of the WIRC Act, the Court would have to determine the State in which the employer’s principal place of business was located.
As stated in Martin at [80], the phrase ‘principal place of business’ has a wide meaning, and it is not simply the State where the registered office is located.
The Court accepts the Defendant’s submission that whilst the Defendant’s head office might have been in Victoria, as of May 2022, the Defendant’s ‘principal place of business’ in respect of its rail business was in Launceston because that was the place where the rail work was. In answer to a question from the Court, Mr Needham gave evidence that, apart from administration, everything else would go through the superintendent (T76: 21041).
The reliance of the Plaintiff on the fact that 5 Plane Tree Avenue, Dingley Village was the Defendant’s ‘principal place of business’ for the Corporations Act 2001 and that the employment contract specified the same address as the current primary business location ignores the reality of the situation. The Defendant engaged the Plaintiff to perform rail work on rail contracts. The only rail contracts of the Defendant as of mid-June 2022 were in Tasmania.
Conclusion
For the reasons as set out above, the Plaintiff’s employment was connected with the State of Tasmania. Therefore, the Plaintiff has no entitlement to compensation pursuant to s37(1) of the WIRC Act.
The proceeding is dismissed.
The parties are asked to provide the appropriate orders.
MAGISTRATE MICHAEL RICHARDS
6 June 2024
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