Rogers v Workers' Compensation Regulator
[2018] QIRC 2
•12 January 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Rogers v Workers' Compensation Regulator [2018] QIRC 002 |
PARTIES: | Michael Joe Rogers Workers' Compensation Regulator |
CASE NO: | WC/2017/72 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 12 January 2018 |
HEARING DATES: | 20 November 2017; and |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
| ORDERS | 1. The Appeal is dismissed. 2. The Appellant is to pay the Regulator's costs of, and incidental to the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Decision of Workers' Compensation Regulator - Appellant incurred a physical injury - Matter for consideration is whether the Appellant is a "worker" within the Act - Section 113 precludes the Appellant from the Queensland legislation - Appeal dismissed. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| APPEARANCES: | Mr M.J. Rogers, the Appellant. Mr S.P. Sapsford of Counsel, directly instructed by Mr M. Cutting of the Workers' Compensation Regulator. |
Decision
This Appeal is made by Mr Michael Joe Rogers against the Decision of the Workers' Compensation Regulator (the Regulator) dated 3 April 2017 which confirmed the decision of WorkCover Queensland of 2 February 2017, that it was not satisfied that at the time of injury the Appellant was a Queensland worker.
The Legislation
Section 113 of the Workers' Compensation and Rehabilitation Act 2003 (the Act - Queensland Legislation) relevantly provides as follows:
"113 Employment must be connected with State
(1)Compensation under this Act is only payable in relation to employment that is connected with this State.
(2)The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to 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 1 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 1 State is identified by paragraphs (a) or (b), the State in which the employer's principal place of business in Australia is located.
(4) ...
(5)If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if -
(a) the worker is in this State when the injury is sustained; 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 and the intention of the worker and employer.
(7)However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of lot longer than 6 months.
(8) …
(9) In this section -
State, in a geographical sense, includes a State's relevant adjacent area as described in Schedule 4."
WITNESSES
Witnesses for the Appellant were:
· Mr Rogers, the Appellant.
Witnesses for the Regulator were:
· Mr Craig Byriell, Director, Farmer and Contractor of Cottrac Pty Ltd; and
· Ms Carla Byriell, Director, Farmer and Contractor of Cottrac Pty Ltd.
Appellant's Statement of Facts and Contentions
The Appellant commenced employment on 6 April 2016 as a Farm Hand/Tractor or Picker Driver for Cottrac Pty Ltd (hereafter Cottrac). Cottrac has its Head Office and Accountants in Gunnedah, New South Wales.
At the commencement of this employment and at the time of incurring his injury, the Appellant was working for Cottrac at a property, "Yarramildi", which was situated 23 kilometres from the New South Wales border, in Queensland.
On or about 6 April 2016, the Appellant incurred his injury (viz., "lumbar back and neck injury/pain") which he says was caused by a faulty air bag seat on the tractor he was using. A medical certificate was issued by Dr Michael Ling on 9 April 2016 and identified in a WorkCover New South Wales Certificate of Capacity. [Exhibit 1]
The Appellant reported his injury to Cottrac's insurer, Allianz. Allianz initially paid compensation to the Appellant from the period of the commencement of the injury to 30 June 2016, but then rejected the claim stating that his employment was not connected to New South Wales.
Acting upon legal advice, the Appellant lodged his application pursuant to the Queensland Act.
The Appellant's evidence that he was a "worker" for the purposes of the Act
The Appellant's claim was that the terms of his contract with Cottrac were identified by Ms Byriell in a telephone conversation with him on 5 April 2016. He understood that contract contained the following terms:
· That he was to work operating a picker or a tractor commencing his duties on 6 April 2016;
· That he was to be paid a dollar over the minimum wage and that there were no set hours;
· His initial employment was to be at "Yarramildi" and he was not informed how long the work was to continue, however it included accommodation and food; and
· That he was to be working as a casual for as long as needed for the "picking season" and would be travelling to different properties throughout New South Wales. The fact of travelling back to New South Wales to work after the completion of the Queensland work, however, was relayed to him via other workers and not by Ms Byriell.
The Appellant was clear that because he had only worked for Cottrac in Queensland, that he had incurred an injury in Queensland and that he had never been formally told by Cottrac that he would be working anywhere other than in Queensland, then he satisfied the requirement of being a "worker" pursuant to the Queensland Legislation.
The Regulator's evidence regarding the Appellant's claim that he was a worker for the purposes of the Act
Ms Byriell's evidence was that the first cotton picking job of the season was in Yarramildi (Queensland) and it lasted between five to seven days. That was the only work performed in Queensland. Cottrac then undertook cotton picking work within New South Wales.
Ms Byriell said that, although the position offered to the Appellant was casual work, if that had worked out then further work would be offered to him. She advised the Appellant that the next job was near Narrabri, where the Appellant lived. After Narrabri, then Cottrac was going to Gunnedah and then Griffith and/or Darlington which are all situated within New South Wales. Ms Byriell said that she advised the Appellant of this when offering him the position over the telephone.
The Appellant's contract was terminated after two and a-half days when it was claimed that there had been altercations between the Appellant and herself and other workers she had employed. At the time of termination of employment, Ms Byriell stated that she had given the Appellant paperwork to complete in order for her to pay him for the work performed.
Submissions
I have accepted Ms Byriell's evidence that she had advised the Appellant that his work would commence in Queensland for a short period of time to be followed by work in New South Wales at a number of locations. That was the pattern of work undertaken by Cottrac previously as it only had the one contract in Queensland. I accept that these conditions constituted the whole of the contractual terms of employment. The Appellant, in his Statement of 4 May 2016 at paragraph 20 to 22 states:
"20)The job was at Yarramildi on Tollwood Road, about 23 kilometes [sic] from Mungindi, NSW. The property was over the border in Queensland. I wasn't told how long the work was for, but it included accommodation and food, all I had to bring was a water bottle and a mug. The accommodation was at the Two Mile hotel.
21)I only knew I was going to be working for her as a casual for as long as they needed me for the picking season. I believed I would be travelling to different properties with them throughout New South Wales and Queensland even. I didn't provide any machinery. I did drive my own car to get out there and go back to the pub.
22)The work was on Yarramildi picking cotton. The cotton harvest season had just commenced and would normally go over the next three months."
In considering the "whole of the contractual terms of employment", s 113(3)(a) of the Act confirms that New South Wales was the State in which the Appellant usually worked in his employment with Cottrac.
However, if it was the case that it was difficult on the evidence available to nominate which State applied for the purpose of employment, then s 113(3)(c) would be utilised for the purpose of making that determination. The principle place of business for Cottrac was located at Gunnedah in New South Wales.
Relevantly also, s 113(6) of the Act refers to "In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer". The intention of Cottrac in its contract of employment with the Appellant identified that the major component of its work during the "picking season" would occur in New South Wales and the Appellant was aware of this. This was the traditional work pattern undertaken by Cottrac each picking season.
The Appellant is not able to pursue a claim for workers' compensation for the purposes of s 113 of the Act.
The Appeal is dismissed.
The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
Order accordingly.
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