Snore v Basham Projects Pty Ltd
[2018] ACTIC 5
•20 December 2018
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Snore v Basham Projects Pty Ltd |
Citation: | [2018] ACTIC 5 |
Hearing Date: | 6 December 2018 |
DecisionDate: | 20 December 2018 |
Before: | Magistrate Theakston |
Decision: | The Australian Capital Territory is the Territory or State of connection for the applicant. |
Catchwords: | WORKERS COMPENSATION – Employment connection test – Territory or State of connection – Whether or not applicant usually worked in the ACT or NSW |
Legislation Cited: | Workers Compensation Act 1951 (ACT) ss 36B, 68B (6) (b) Court Procedures Rules 2006 (ACT) r 3919A |
Cases Cited: | Avon Products Pty Ltd v Falls [2009] ACTSC 141 Hanns v Greyhound Pioneer Pty Ltd [2006] ACTSC 5 Rahimi v MDS Tiling Pty Ltd & Ors [2018] ACTIC 1 Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 Tapia v Woolworths Limited [2016] ACTSC 129 |
Parties: | Richard Snore (Applicant) Basham Projects Pty Ltd (Respondent) |
Representation: | Counsel Mr A Muller (Applicant) Mr D Crowe (Respondent) |
| Solicitors Maliganis Edwards Johnson (Applicant) King & Wood Mallesons (Respondent) | |
File Number: | WC 196 of 2018 |
MAGISTRATE THEAKSTON:
Background
Mr Snore is a bricklayer who has made two workers compensation claims for an injury that occurred on a building site at Nowra Hill, NSW in March 2018. Basham Projects Pty Ltd is his employer and operates from the ACT.
The parties in this matter seek a declaration as to whether Mr Snore’s employment was connected to NSW or the ACT. The answer to that question will determine which insurer is responsible for responding to Mr Snore’s claim for workers compensation.
The issue
When considering this question I need to apply the employment tests provided at s 36B of the Workers Compensation Act 1951 (ACT). That provision provides a cascading set of four tests, where a subsequent test need only be considered if the previous tests do not yield a definitive result involving a single Territory or State. The first three of those tests are:
(a)Where the worker usual works;
(b)Where the worker is usually based; and
(c)Where the employer’s principal place of business is located?
In this matter the controversy is limited to the first test. This is because if the first test yields a definitive answer, there would be no need to consider the subsequent tests; and if it does not yield a definitive answer it was agreed between the parties that the second test would yield the result of NSW and the ACT, and the third test would yield the result that the ACT, which in turn would mean the ACT is the jurisdiction connected to Mr Snore’s employment.
Basham Projects’ ACT insurer, AAI Limited, conducted the proceedings on behalf of Basham Projects. The NSW default insurer did not take part in the proceedings. It is unclear to me if the NSW insurer was given notice of the application, as required by r 3919A of the Court Procedures Rules 2006. In any event, the position I have ultimately reached means there is no need to be concerned about the NSW insurer’s right to be heard.
Facts
The parties agreed on a suite of facts. Additionally, evidence was received that was not challenged and is not controversial. Accordingly, I make the following findings:
(a)In 1996, Mr Snore commenced working for Mr Basham as an apprentice bricklayer.
(b)In 1999, Mr Basham transitioned to trading under the corporation – Basham Bricklaying Pty Ltd. Mr Basham was the sole director of the company. Initially Mr Snore worked as an employee of that company. After approximately seven years, Mr Snore ceased working as an employee and performed work for the company as a contractor using his own ABN.
(c)Mr Snore’s engagement with Basham Bricklaying was episodic. For example, before September 2016, Mr Snore had not performed work for Basham Bricklaying for a considerable period of time. It was usual for Mr Basham to discuss rates of pay with the bricklayers at the start of each new project and the agreed arrangements were not reduced to writing. The majority of the work was performed in the ACT, with a proportion of the work performed in NSW.
(d)In May 2016, Basham Bricklaying was placed into administration and was eventually wound up due to unpaid taxation debts.
(e)Following Basham Bricklaying being placed into administration and after only a number of weeks, Mr Basham recommenced trading using a new corporation – Basham Projects Pty Ltd.
(f)From September 2016 to May 2017, Mr Snore worked for Basham Projects as a casual employee on an intermittent, irregular and infrequent basis. All of the work was performed in the ACT.
(g)In May 2017, Mr Snore and Mr Basham had a conversation about Mr Snore being underpaid. Mr Snore was not happy about the underpayment and Mr Basham arranged for the shortfall to be paid. Notwithstanding there being work for Mr Snore to go on with, he did not work again for Mr Basham or Basham Projects until November 2017.
(h)From November 2017 to March 2018, Mr Snore worked again with Basham Projects as a casual employee at a worksite at the South Coast Correctional Centre at Nowra Hill, NSW. During this period, the work was more regular than it had been during the previous period of engagement and Mr Snore did not work at any other site for Basham Projects. Mr Snore attended Mr Basham’s home office in the ACT on at least a couple of occasions during this period. Mr Snore’s rate of pay increased significantly to $65 per hour. He was also paid travel, safety and other allowances. His description within his payslips changed from ‘foreman’ to ‘bricklayer casual’. Mr Snore returned to Canberra most weekends. Early on, Mr Snore and Mr Basham discussed and agreed that work at the site may involve 9 – 12 month’s work. Notwithstanding that discussion, Mr Snore intended to work on that project for a few months and then return to live in Canberra full time.
(i)On 6 March 2018 and while using a large nail gun at the worksite, Mr Snore felt a severe and sudden pain in his right shoulder, followed by a tingling and numbness in his right arm. Earlier that same month he had fallen onto his right arm while working at the same site.
(j)At the time of Mr Snore’s injury it was unclear if Basham Projects would receive the contract to perform Stage 2 of the project at the site, and therefore how much longer Mr Snore would be required to work at the site. Stage 1 work was completed shortly thereafter in April 2018. Prior to the injury, Mr Snore and Mr Basham discussed Mr Snore performing work on Stage 2 of the project and on other projects that Basham Projects had in the ACT during any delays or pauses in the project at Nowra Hill. There was no agreement about the rate of pay for work performed in the ACT during such delays or pauses.
(k)Mr Snore subsequently made workers compensation claims to both Basham Projects’ ACT workers compensation insurer and the NSW default workers compensation insurer. Both claims were refused. In the former case the claim was refused on the basis that Mr Snore was a NSW worker and not an ACT worker, and in the latter case on the basis that Mr Snore was an ACT worker and not a NSW worker. In those applications, both Mr Snore and Basham Projects described the employment as having commenced in November 2017.
(l)Over the years Mr Snore has deliberately chosen to not work continuously for Mr Basham or his companies, notwithstanding the availability of work. Instead he has worked on projects for a period of time and then not worked for a period of time. He has taken time off from employment for personal reasons. When not working he has, at times, lived in Cairns. Mr Snore has not worked for anyone other than Basham Projects since June 2016.
During his evidence, Mr Snore indicated that the minimum rate of pay he received was $43 per hour. However, he was employed by Mr Basham or a related corporation dating back 20 plus years, and the pay slips and bank records evidence a rate of pay of $35 per hour during the September 2016 to May 2017 period. Mr Snore also indicated that he did not discuss with Mr Basham an hourly rate of pay, but rather the amounts he expected to receive for a day’s or week’s worth of work.
In those circumstances I do not accept Mr Snore’s evidence in relation to him being paid a minimum of $43 per hour, and I instead find that during the September 2016 to May 2017 period he was paid $35 per hour, which is clearly in contrast to his hourly rate of $65 for the Nowra Hill project.
The test
In Rahimi v MDS Tiling Pty Ltd & Ors [2018] ACTIC 1, I observed:
29.The first step of the test involves a determination about in which Territory or State the applicant “usually works”? Relevant considerations for that test are provided at s 36B (6), which reads:
(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.
30.Gray J in Hanns v Greyhound Pioneer Pty Ltd [2006] ACTSC 5 at [26] accepted that ‘usual’ meant ‘habitual or customary, or that of “in a regular manner”’, and Higgins CJ in Avon Products Pty Ltd v Falls [2009] ACTSC 141 at [43] observed that the test was ‘not a merely mathematical exercise’.
…
34.Mossop AsJ, as he was then, in Tapia v Woolworths Limited [2016] ACTSC 129 at [35] made the following observations about the temporary arrangement exclusion provided at s 36B (6) (b) of the Act:
It may therefore be applied in circumstances where the place or places where the worker usually works has been distorted by a temporary arrangement of less than six months. The appropriate approach is to work out where the worker usually works having regard to all the facts. Having done that, the temporary arrangement exclusion can be applied if the place or places where the worker usually works has been affected by a temporary arrangement. The arrangement must be a temporary departure from what would otherwise be the usual state of affairs. If there is such a temporary arrangement then the exercise of determining where the worker usually works must be undertaken without regard to such temporary arrangements.
Section 36B (6) (a) (i) describes the relevant consideration of work history with the employer over the previous 12 months. The question arises, does that provision prevent consideration of work history earlier than the previous 12 months, or work history with an entity associated with the employer?
Commissioner Herron considered the first part of that question in Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78. The Commissioner reflected on the meaning and application of the expression ‘regard must be had to’ as used in the Western Australian provision. After discussing various aspects of statutory interpretation, the Commissioner concluded, that in the absence of the word ‘only’ and given the purpose of the legislation, the expression ‘regard must be had to’ required the court to take into account the consideration and to give it such weight as appropriate, but the use of that expression did not limit the court’s discretion to take into account other considerations, including work history with the employer preceding the previous 12 months.
With respect I agree with that approach. I note that s 36B (6) also uses the expression ‘regard must be had to’ and does not include the word ‘only’. Taking the approach as adopted Tamboritha would be consistent with the language and purpose of the Act, including the temporary arrangement exclusion provided at s 36B (6) (b). Further, the language in s 36B (6) must permit taking into account other relevant considerations in appropriate circumstances, including arrangements between the worker and other entities associated with the employer, and it should be left to the court’s discretion to attribute an appropriate weight to such matters.
Consideration
It is clear from the facts that Mr Snore had a long standing 20 plus year working relationship with Mr Basham and the companies Mr Basham used to conduct his business. The work involved a succession of temporary projects that emerged from time to time, and where the precise working arrangements were informally agreed at the beginning of each project. Most projects were in the ACT, but some were in NSW. Mr Snore worked when there was a conjunction of available work with his desire to work. This arrangement is different from a standing arrangement, like the one described in Tamboritha, where there was an established, but dormant, arrangement awaiting activation when work became available. It is also different from a permanent arrangement, that followed a deliberate change from an earlier permanent arrangement, as was the case in Tapia, because in this case each arrangement was only ever temporary, but the working relationship between Mr Snore and Mr Basham and his companies, in particular Basham Projects since September 2016, was ongoing notwithstanding the work being episodic in nature and subject to varying conditions as negotiated from time to time.
That history is relevant and helpful in that it informs me about the nature of the relationship generally over time, and that in turn assists me to determine the particular nature and character of the arrangements in more recent times. In this case, considering the longevity and nature of the relationship between Mr Snore and Mr Basham and his companies, it would be artificial to determine the usual, habitual or customary location of work by reference only to one individual project, such as the Nowra Hill project. This is because what is usual, habitual and customary must be informed by the ongoing, albeit episodic, working relationship between Mr Snore and Mr Basher and his companies that preceded and included the Nowra Hill project.
During the preceding 12 months or so, Mr Snore had worked in the ACT sporadically and infrequently. That was followed by intentionally not working for approximately six months, and then working at the NSW site for a number of months before his injury.
Mr Snore’s future working arrangements involved working at the site for a further few weeks until the completion of Stage 1 of the project, and then during Stage 2, if that contract was secured. It was also contemplated that Mr Snore may work in the ACT on Basham Projects’ other projects for part of any period when work was paused at the Nowra Hill site, although the conditions of that alternative employment were not agreed and the conditions for previous employment suggested that those conditions would be different to what was in place for the Nowra Hill project.
Basham Projects intended to employ Mr Snore on the Nowra Hill site for as long as there was work there for him to do, and to possibly utilise him for other work in the ACT during breaks at Nowra Hill. Mr Snore intended only to work at the Nowra Hill site for a few months and to continue to live a life where he worked for Basham Projects for part of the year.
Over the course of the time Mr Snore worked with Mr Basham and his companies, the work was located predominantly in the ACT, with a proportion of the work in NSW.
Out of completeness I note that the temporary arrangement exclusion, as provided by s 68B (6) (b), could not apply here because the arrangement as agreed between Mr Snore and Mr Basham was for a period of 9 – 12 months, which clearly exceeds the six-month threshold. This is the case, notwithstanding any private intentions Mr Snore may have had from time to time, or the fact that the initial agreement between Basham Projects and the principle builder involved only Stage 1 of the works.
In all these circumstances, I am persuaded on the balance of probabilities that Mr Snore usually worked in both NSW and the ACT.
Moving to the subsequent tests, when I consider the evidence I agree with the parties’ assessment that Mr Snore was usually based in both NSW and the ACT, and that Basham Projects’ principal place of business was in the ACT.
Orders
Accordingly, I declare that the Australian Capital Territory is the Territory or State of connection for the applicant.
Costs
I will hear from the parties in relation to the question of costs.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 20 December 2018 |
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