P J Elliot Holdings Pty Ltd v Baker
[2014] ACTSC 308
•14 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | P J Elliot Holdings Pty Ltd v Baker and Anor |
Citation: | [2014] ACTSC 308 |
Hearing Date: | 20 June 2014 |
DecisionDate: | 14 November 2014 |
Before: | Burns J |
Decision: | The appeal is upheld. The orders made by the Magistrate are set aside. The matter is remitted to the Magistrates Court. |
Category: | Principal Judgment |
Catchwords: | WORKERS’ COMPENSATION – Employment Connection Test – whether the Australian Capital Territory is the Territory or State of connection APPEAL – Appeals From and Control Over Magistrates – appeal upheld |
Legislation Cited: | Workers Compensation Act 1951 (ACT) ss 36B, 36D Workers’ Compensation and Rehabilitation Act 2003 (QLD) s 113 (3) |
Cases Cited: | Ferguson v WorkCover Queensland [2013] QSC 78 Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; 196 FLR 361 |
Parties: | P J Elliot Holdings Pty Ltd (Appellant) Donald Stewart Baker (First Respondent) Workers Compensation Nominal Insurer (Second Respondent) |
Representation: | Counsel Mr Muller (Appellant) Mr McCarthy (First Respondent) Mr Perry (Second Respondent) |
| Solicitors Sparke Helmore Lawyers (Appellant) Bradley Allen Love (First Respondent) Lee and Lyons Lawyers (Second Respondent) | |
File Number: Decision under appeal: | SCA 17 of 2014 Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 20 February 2014 Case Title: PJ Elliott Holdings Pty Ltd v Donald Baker Court File Number: WC 89 of 2013 |
Burns J:
On 29 September 2010 the first respondent, Donald Baker, claims that he sustained an injury in his employment as a bobcat driver with the appellant, PJ Elliot Holdings Pty Ltd. The injury is said to have occurred in the Australian Capital Territory (ACT) while Mr Baker was in the course of his employment with the appellant. Mr Baker made a claim for workers compensation pursuant to the Workers Compensation Act1951 (ACT) (the Act), which was accepted by the appellant’s insurer, Zurich Australian Insurance Ltd (Zurich).
An Application for arbitration for leave to reject Mr Baker’s claim pursuant to s 132 of the Act was filed by the appellant in the ACT Magistrates Court (the Application). That Application was subsequently amended to include a request for a determination of whether the ACT is the “Territory or State of connection” for the purposes of Mr Baker’s claim for compensation. The Workers Compensation Nominal Insurer was also a party to the proceedings in the Magistrates Court and remained a party to this appeal.
Relevant legislation
The employment connection test is set out in s 36 B of the Act:
Employment connection test
(1)Compensation under this Act is only payable if the ACT is the Territory or State of connection.
(2)The fact that a worker is outside the ACT when injured does not prevent compensation being payable under this Act if the ACT is the Territory or State of connection.
(3) A worker’s employment is connected with –
(a) the Territory or State where the worker usually works in the employment; or
(b) if no Territory or State, or no single Territory or State, is identified by paragraph (a) – the Territory or State where the worker is usually based for the purposes of the employment; or
(c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b) – the Territory or State where the employer’s principal place of business in Australia is located.
(4)For a worker working on a ship, if no Territory or State, or no single Territory or State, is identified by subsection (3), the worker’s employment is, while working on the ship, connected with –
(a)the Territory or State where the ship is registered; or
(b) if the ship is registered in more than 1 Territory or State – the Territory or State where the ship most recently became registered.
(5)If no Territory or State is identified for a worker by subsection (3) or (4), the worker’s employment is connected with the ACT if –
(a)the worker is in the ACT when injured; and
(b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia.
(6)In deciding whether a worker usually works in a Territory or State –
(a)regard must be had to the following:
(i) the worker’s work history with the employer over the previous 12 months;
(ii) the worker’s proposed future working arrangements;
(iii) the intentions of the worker and employer;
(iv) any period during which the worker worked in a Territory or State (a relevant place) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place; but
(b)regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months.
The Magistrates Court, in deciding this question, was acting pursuant to s 36D of the Act:
Determination of Territory or State of connection by Magistrates Court
(1)If a claim for compensation under this Act has been made, a party to the claim may apply to the Magistrates Court for a determination of the question of which Territory or State is the Territory or State of connection.
(2)The Magistrates Court must determine the Territory or State of connection in accordance with section 36B (Employment connection test).
(3)However, an application may not be made or heard if there is a determination of the Territory or State of connection that is to be recognised under section 36E.
The decision in the Magistrates Court
A Magistrate heard evidence from the parties on 19 February 2014, followed by oral submissions. On 20 February 2014 the Magistrate determined that Mr Baker’s “employment is connected to the [ACT], and [that he] usually works in the [ACT]” and, as such, that the State or Territory of connection for the purposes of the Act as determined by s 36D of the Act is the ACT. The Magistrate delivered oral reasons for this decision, to which I will return shortly.
The appeal
The appellant has appealed from the Magistrate’s decision that the ACT is the State or Territory of connection for the purposes of the Act as determined by s 36D. An Amended Notice of Appeal was filed with leave at the hearing of the appeal on 20 June 2014, setting out the following grounds of appeal:
4.1. His Honour erred in failing to make factual findings about the respondent’s work activity with sufficient clarity to enable a proper understanding of the basis for his conclusion that the respondent usually worked in the Australian Capital Territory.
4.2. His Honour erred in failing to allow for the possibility that a worker may have more than one usual place of work.
4.3. His Honour erred, at line 30 and following, in incorporating a comparative component into the assessment of “usually works” for the purposes of s 36B(3)(a).
4.4. His Honour erred in concluding at line 30 and following that the temporary arrangement provision in s 36B(6)(b) applied to a situation where work was regularly preformed in more than one jurisdiction.
In order to address these grounds, it is necessary to refer to the evidence placed before the Magistrate, and to his reasons.
The evidence in the Magistrates Court
Paul John Elliott, the director of the appellant company, affirmed an affidavit on 23 December 2013 in which he deposed to the following matters:
(a)the appellant conducts an excavation and haulage business from premises located at 26 Royalla Drive, Royalla New South Wales (NSW);
(b)the business conducted by the appellant has been operated from the Royalla premises for at least 10 years;
(c)the appellant, as at 29 September 2010, owned a number of trucks and other pieces of earth moving equipment, including bobcats. The road registered vehicles were registered in the ACT “for historic reasons”;
(d)these trucks and other equipment are usually stored at the Royalla property, although the appellant also leases space at a property in Tralee Street, Hume in the ACT. There are two trucks normally stored at Hume, but they do not include the truck operated by Mr Baker.
(e)Mr Baker was employed by the appellant as a driver/plant operator, and was generally assigned a rigid tip truck bearing registration YLS 345, which carried a bobcat;
(f)this truck was generally stored at the Royalla property, and on most days Mr Baker would drive to the Royalla property, collect the truck and bobcat and drive to his work site;
(g)Mr Baker would return to the Royalla property at the end of each day to leave the truck and collect his vehicle, although there were unusual occasions when Mr Baker took the truck overnight to his place of residence. Usually Mr Baker would start and finish work at the Royalla property, and he was paid from the time he picked up the truck until he returned it to Royalla;
(h)the drivers, including Mr Baker, would generally refuel the trucks at the Caltex service station in Hume;
(i)most of the appellant’s business involves excavation for swimming pools, together with other construction related excavation. An estimated 80 per cent of that work is on job sites in the ACT, but it is usual for all employees, including Mr Baker, to perform work on jobs in NSW;
(j)in any given month it would be expected that Mr Baker would usually perform some work on jobs located in NSW;
(k)the property at Royalla comprises some 8 acres. It has, in addition to a house from which the appellant conducts its business, a shed and a workshop, and all the trucks are stored beside the shed; and
(l)the servicing of the trucks and equipment is usually undertaken at Queanbeyan NSW, with some minor maintenance work being performed at the Royalla property.
Annexed to Mr Elliott’s affidavit are copies of job sheets in respect of jobs performed by Mr Baker commencing 1 June 2010 up until 30 September 2010. The job sheets reveal that, of 58 jobs undertaken by Mr Baker in that period, 48 were in the ACT, 9 were in NSW, and the remaining job sheet is illegible.
Mr Elliott also gave oral evidence at the hearing before the Magistrate and was cross-examined. Mr Elliott testified that the employees of the appellant, including Mr Baker, were paid from the time they arrived at the Royalla property and started the truck to warm it up, until they parked the truck on the Royalla property at the end of the day. He confirmed that the appellant has only one office, located on the Royalla property.
In cross-examination by counsel for Mr Baker, Mr Elliott agreed that there had been complaints from the local council at Royalla in the past about noise from his trucks and the number of trucks he kept on the property but “that was a long time ago”. He agreed that the appellant kept two articulated trucks at the premises of another transport company in Hume ACT, but denied that this arrangement was because of complaints about noise caused by the keeping of trucks at the Royalla property. The reason for the arrangement, he said, was because there was insufficient level ground near the sheds at the Royalla property to park the two articulated trucks.
Counsel for Mr Baker suggested to Mr Elliott that a few weeks after Mr Baker commenced work for the appellant, it was decided that Mr Baker would store the truck and bobcat at his premises at Banks in the ACT. Mr Elliott rejected that proposition, saying that the truck driven by Mr Baker was stored at the Royalla property “perhaps 90-odd percent of the time”. Mr Elliott said that on most days he would only see Mr Baker in the afternoon and sometimes they would have a beer in the shed. Mr Elliott agreed that at times he would ring Mr Baker at night to tell him about his jobs for the next day, but said that only occurred if he didn’t see Mr Baker that afternoon or if he took the truck home.
In cross-examination by counsel for the Workers Compensation Nominal Insurer, Mr Elliott agreed that as little as 10 per cent of the jobs undertaken by Mr Baker may have been in NSW, although he thought 20 per cent was probably a better estimate.
Darren Andrew Schirmer, the foreman of the appellant company, affirmed an affidavit dated 23 December 2013. He affirmed that he had been employed by the appellant since February 2010, and in the course of his employment regularly and routinely works at sites in both NSW and the ACT. In addition to his duties as foreman, he also drives trucks and undertakes general maintenance on plant and equipment. This general maintenance is undertaken at the appellant’s Royalla property. The majority of the company trucks are also parked at the Royalla property each night, although a small number of larger double trailer trucks are parked in leased parking spots at a property at Hume. Mr Schirmer stated that he knew the respondent, Donald Baker, as an employee of the appellant company. He said that he would see Mr Baker arrive at the Royalla property in the morning in a white Ford Falcon. He would then leave the Royalla property after picking up the truck that he was using that day. He would then return the truck to the Royalla property at the end of the day. He stated that it was company policy that the trucks be returned to Royalla each night rather than being left in suburban streets. Mr Baker might have taken a truck home on a small number of occasions, but it did not occur very often. All major maintenance on the trucks and plant and equipment was undertaken by a service provider in Queanbeyan, NSW.
In cross-examination by counsel for Mr Baker, Mr Schirmer agreed that some trailers belonging to the appellant were stored off the Royalla property because there had been some complaints from neighbours about noise from the trucks. He stated that he thought Mr Baker may have taken his truck home on about half a dozen occasions. He disagreed with the proposition that Mr Baker kept his truck at his home the majority of the time that he worked for the appellant.
Mr Donald Baker gave evidence before the Magistrate. He said that he had resided at an address in Banks in the ACT for approximately eight years. He commenced work with the appellant company in February 2010. In that employment he drove a truck and a bobcat. For the first month or so of that employment the truck and the bobcat were kept at the Royalla property, and he would start and finish work there each day. As a result of complaints by neighbours about noise coming from the Royalla property, Mr Baker said that he offered to keep the truck and the bobcat overnight at his home in Banks, to which Mr Elliott agreed. From that point on, at least four nights out of five he would keep the truck and the bobcat at his premises in Banks. Mr Elliott would tell him of the jobs that he had to do each day by text message or by telephone. He would also see Mr Elliott regularly on site where he was working. Mr Baker stated that he completed his timesheets and either handed them to Mr Elliott or Mr Schirmer at a worksite, or he would drive out to Royalla in his private vehicle on Saturday and deliver them. He said that he could go for a week or more without having to go out to the Royalla property. He would also park the truck at the parking spaces the appellant rented in Hume on occasion, particularly during winter because the parking spaces were undercover which kept frost off the trucks and made them easier to start.
In cross-examination by counsel for the Workers Compensation Nominal Insurer Mr Baker agreed that prior to being employed by the appellant he had been self-employed, and as such had set up a home office in his house in Banks. In cross-examination by counsel for the appellant, he stated that he did about 10 per cent of his jobs for the appellant in NSW, with the rest being performed in the ACT. At times there could be as long as three weeks between jobs in NSW. He also accepted that the truck he drove was repaired in NSW, and day-to-day servicing of the bobcat and truck could be undertaken at Royalla. He agreed that his home office had not been set up at the request of the appellant. He denied that he usually returned the truck and bobcat to Royalla each afternoon, and picked them up again the next morning. Mr Baker testified that he had no animosity towards Mr Elliott and had never argued with him, nor did he have any problems with Darren Schirmer.
On behalf of Mr Baker, Reginald Newcomb gave evidence. He was a truck driver who lived in the same street as Mr Baker, and also commenced employment with the appellant in approximately April 2010. He testified that in the approximately six months that his employment with the appellant coincided with that of Mr Baker he saw the truck which was owned by the appellant and driven by Mr Baker parked in front of Mr Baker’s house regularly. Over that period of six months, the truck was parked in front of Mr Baker’s house for approximately five months. Mr Newcomb testified that the truck that he drove for the appellant was usually parked at Hume, and the truck that Mr Baker drove had been parked at Hume for about one month out of that six-month period. The evidence of Mr Newcomb was, therefore, that over this six-month period the truck had been parked at Mr Baker’s house for five months, and at Hume for one month.
In cross-examination by counsel for the appellant, Mr Newcomb agreed that there would have been no time during that six-month period when the truck driven by Mr Baker had been parked at Royalla. Mr Newcomb agreed that he had left the appellant’s employment after a falling out with Mr Elliott, and stated that Mr Elliott is “a cranky little man”.
The final witness in the proceedings in the Magistrates Court was Mrs Josephine Baker, the wife of Mr Baker. She estimated that during the time her husband worked for the appellant he brought the truck home approximately 80 per cent of the time. She was not aware where the truck was parked the other 20 per cent of the time.
The Magistrate’s decision
The Magistrate, unfortunately, made few clear findings of fact. He spent some time setting out the evidence that had been called by the parties, but made no determination of fact in areas where there was a clear conflict between the cases advanced by the appellant and by Mr Baker. It may be accepted that the parties were in agreement that at least 80 per cent of the work undertaken by Mr Baker for the appellant was in the ACT, but there was evidence suggesting that that figure could be as high as 90 per cent. This issue was not addressed by the Magistrate. In addition, there was a clear dispute between the parties concerning how often Mr Baker went to the Royalla property as part of his employment. The Magistrate seems to have approached this last issue as if it was irrelevant:
In relation to the information provided to me both by Mr Baker and by Mr Elliott, and at least in a very small way by the foreman Mr Schirmer, I formed the view that if you look at where the usual place of work was being performed, on the exhibit alone of P1, it would reveal that to be the ACT. It is important to consider the evidence which has been provided by the applicant – that is, not to be drawn into distractors which whilst they go to show in an overarching sense the employment context and the arrangements put in place between an employer and employee which would be of assistance in looking at each of the three separate criteria, the fact that an employee is required, for instance, to take a timesheet out on Friday afternoons because timesheets were removed from the truck – and that was certainly the evidence of Mr Schirmer, that he visited [Mr Baker’s home] at least on one occasion to remove timesheets – or, as was the evidence of Mr Baker and Mr Elliott, that sometimes he would pick up timesheets on a Friday afternoon from the site where they were working, the fact that there might be the requirement to do repairs, the fact that there might be a need to travel to another State for the purposes of giving effect to those repairs, were all in a context of occasional and not one which could be described as either customary or regular or habitual.
Later in his reasons the Magistrate said:
In looking at then the worker’s history as revealed through PI, it would show on any logical and natural reading of it that the customary or regular place in which the employee was required to perform the services as a site cleaner and excavator, using the Bobcat and driving a truck, was in the ACT.
I note that the reference to P1 in the Magistrate’s reasons is a reference to an exhibit consisting of a schedule of Mr Baker’s timesheets between April 2010 and October 2010, apparently showing that of the 128 sites where Mr Baker performed work on behalf of the appellant during that period, only 11 of those sites were in NSW.
By basing his decision that Mr Baker usually worked in the ACT in his employment with the appellant solely upon the location of the sites where Mr Baker undertook work with the truck and the bobcat, as revealed in exhibit P1, the Magistrate fell into error. The very clear and undisputed evidence was that Mr Baker was performing duties as part of his employment from the time that he turned on his truck in the morning to warm up the engine, until he turned off the engine of the truck at the end of the day. To ignore the fact that collecting the truck and driving it to its destination, and then returning the truck at the end of the day, was part of the work of Mr Baker was to ignore potentially significant evidence, and meant that the Magistrate did not address the significant factual dispute between the parties, being whether Mr Baker usually collected and dropped off the truck and bobcat at Royalla, or whether he usually kept them at his home in Banks.
In the absence of clear findings of fact by the Magistrate on disputed aspects of the evidence, the most that I can be certain of is that Mr Baker performed (at best for his case) 90 per cent of the work that he undertook for the appellant in the ACT, with the remaining 10 per cent being performed in NSW. The question is whether I can be satisfied that the Magistrate was in error in finding that Mr Baker usually worked in the ACT on this basis. The alternative is to remit the matter to the Magistrate for him to make appropriate findings of fact, a course which I accept is undesirable.
Relevant authorities
In Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; 196 FLR 361, Gray J considered the test set out in s 7A (2) of the Act (the equivalent to the present s 36B (3)), and rejected the proposition that the State or Territory in which a worker usually carried out the work of their employment was that in which they did the majority, or highest percentage, of that work. Gray J went on to say:
26. I consider that by giving “usually” it’s more obvious meaning of habitual or customary, or that of “in a regular manner”, the test posited by s 7A of the Act (and the corresponding sections of the legislation in the other States and Territories) is relatively simple and straightforward.
27. The test is a progressive test. If there is a State or Territory which satisfies the first limb (s 7A(2)(a)), then there is no need to progress to the second (s 7A(2)(b)) and if the second is satisfied, there is no need to go to the third (s 7A(2)(c)). That does not mean that each limb is to be construed without reference to the overall objective to be achieved by the provision and that objective can sensibly be achieved by looking to the customary or regular places where the work is carried out.
28.The provision is to be construed with the background that each Territory or State has a workers compensation scheme. When a worker is customarily or routinely required to carry out his work in more than one Territory or State, it is a simple and logical circumstances to enquire as to the worker’s base or if that does not provide the answer, then the Territory or State in which the worker was first employed.
It must be observed that since Gray J made this decision, the Act has been amended so that the third limb of the test posited in s 7A (2) (c), now s 36B (3) (c) no longer invites inquiry into the Territory or State in which the worker was first employed. That provision (s 36B (3) (e)) now specifies the Territory or State where the employer’s principal place of business in Australia is located.
In Ferguson v WorkCover Queensland [2013] QSC 78, Applegarth J considered whether a delivery driver who drove in both NSW and Queensland as part of his employment usually worked in Queensland, such that his entitlement to workers compensation was governed by the laws of that State. Section 113 (3) of the Workers’ Compensation and Rehabilitation Act2003 (QLD) is effectively in the same form as s 36B (3) of the Workers Compensation Act1951 (ACT). The evidence established that the worker in Ferguson, in the six months before his injury, predominately made his deliveries in Queensland. On the day he was injured, he was undertaking deliveries in NSW, which is where the injury occurred. After reviewing a number of authorities, including Hanns v Greyhound Pioneer Australia Ltd, Applegarth J said:
[34]The authorities illustrate that the determination of whether there is a State in which the worker “usually works” in that employment depends upon the circumstances of the particular employment. The fact that a worker’s time in employment is predominantly spent in one State does not necessarily mean that the State is the only State in which the worker “usually works”. The worker will usually work in more than one State if the worker habitually or customarily works in a second State. In such a case there will be no one State identified as being “the State in which the worker usually works in that employment” and the enquiry will turn to determining the State in which the worker is “usually based” for the purposes of that employment.
Earlier in his reasons, at [33], Applegarth J opined that “an occasional, even regular attendance in another State for training or attendance at a meeting may not constitute a sufficient connection. In such a case the worker’s occasional presence in a State for work-related purposes may mean that he or she does not “usually work” in that State”.
The test of whether a worker “usually works” in a particular State or Territory, as opposed to whether he or she usually works in more than one State or Territory, as posited by s 7A is not quantitative in the sense that it does not depend on establishing that the worker undertook any particular proportion of his or her duties in that State or Territory. It also seems clear that the test is posited by s 36B (3) (a) is not satisfied by simple regularity of work in a particular State or Territory. For example, a person employed to carry goods from Queanbeyan to Braidwood in NSW each day via the Kings Highway will travel through the ACT for a very short period on each such journey, but it could hardly be said that he or she usually worked in the ACT in their employment as a truck driver simply because they spent a few minutes each day traversing the outer rural border of the Territory. The test found in s 36B (3) (a) of the Act is incapable of precise exposition, at least as it was interpreted in Hanns v Greyhound Pioneer Australia Ltd and Ferguson v WorkCover Queensland. In some cases the test as espoused in those cases will provide an obvious answer, but in many cases it will not. A court required to apply the test in one of these latter cases must apply its judgment to the facts of the particular case, which introduces an element of unpredictability which is regrettable.
Decision
I have formed the view that, even on a best case scenario for Mr Baker, the evidence does not establish that he usually worked in the ACT as opposed to usually working in the ACT and NSW. The evidence establishes, on Mr Baker’s own case, that approximately 10 per cent of the jobs which Mr Baker undertook in his employment with the appellant were in NSW. Mr Baker’s regular attendance in that State was not for work-related duties, but to undertake the work itself. As such I am satisfied that he regularly, albeit infrequently, undertook his employment in that State. As such the Magistrate was in error in determining that Mr Baker’s employment is connected with the ACT by virtue of the test in s 36B (2) (a) of the Act.
The appeal is upheld and the orders made by the Magistrate are set aside. The matter will be remitted to the Magistrates Court for further determination of the application for arbitration in accordance with these reasons.
I will hear the parties on the question of costs.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 14 November 2014 |
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