Snore v Basham Projects Pty Ltd - [2018] ACTIC 5

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Snore v Basham Projects Pty Ltd

Details

AGLC: Snore v Basham Projects Pty Ltd [2018] ACTIC 5
Case: [2018] ACTIC 5
Decision Date: 20 December 2018

CaseChat Overview and Summary

In the case of Snore v Basham Projects Pty Ltd, Richard Snore, a bricklayer, sought a declaration as to whether his employment was connected to New South Wales (NSW) or the Australian Capital Territory (ACT). This determination was crucial for identifying the responsible insurer for Snore's workers compensation claim, which arose from an injury sustained at a building site in Nowra Hill, NSW. Basham Projects Pty Ltd, Snore's employer, argued that the ACT was the Territory or State of connection, while Snore contended for NSW. The Industrial Court of the Australian Capital Territory was tasked with resolving this dispute.

The central legal issue before the court was the application of the employment connection test under section 36B of the Workers Compensation Act 1951 (ACT). The court needed to determine whether Snore usually worked in NSW or the ACT, as this would dictate the jurisdiction responsible for his workers compensation claim. The court considered factors such as Snore's work history with Basham Projects, his proposed future working arrangements, and the intentions of both Snore and Basham Projects.

The court found that Snore's employment with Basham Projects was episodic, with work primarily conducted in the ACT and some in NSW. The court rejected Snore's claim that he was paid a minimum rate of $43 per hour, instead finding that he was paid $35 per hour during certain periods. Given the episodic nature of the employment and the significant proportion of work performed in the ACT, the court concluded that Snore usually worked in both NSW and the ACT. Consequently, the court declared that the ACT was the Territory or State of connection for Snore's employment, determining that Basham Projects' ACT insurer was responsible for handling Snore's workers compensation claim.

The court's decision was based on a comprehensive analysis of Snore's long-standing and episodic working relationship with Basham Projects, the informal nature of the employment agreements, and the predominant location of the work in the ACT. The temporary arrangement exclusion under section 36B(6)(b) of the Act was deemed inapplicable as the agreed arrangement for the Nowra Hill project exceeded six months. The court's declaration resolved the jurisdiction issue, ensuring that the appropriate insurer would address Snore's workers compensation claim.

Orders