Tapia v Woolworths Limited - [2016] ACTSC 129

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Tapia v Woolworths Limited
Citation:	[2016] ACTSC 129
Hearing Date:	9 June 2016
DecisionDate:	17 June 2016
Before:	Mossop AsJ
Decision:	See [47]
Catchwords:	WORKERS COMPENSATION – APPEAL – Appeal from decision of Industrial Court of the Australia Capital Territory – Workers Compensation Act 1951 (ACT) s 36B – Employment connection test – “State or Territory of connection” – Whether Australian Capital Territory is the only Territory or State where the worker “usually works” – Meaning of “temporary arrangement” in s 36B(6)(b)
Legislation Cited:	Court Procedure Rules 2006 (ACT), rr 6, 5115 Workers Compensation Act 1951 (ACT), ss 7A, 33, 36B, 197 Workers Compensation (Amendment) Act 1997 (ACT) Workers Compensation Amendment Act 2003 (No 2) (ACT) Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT)
Cases Cited:	Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34 Fed Consulting Services Pty Ltd v Gelo [2014] ACTSC 185 Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1 Hanns v Greyhound Pioneer Australia Ltd (2006) 196 FLR 361
Parties:	Gabriel Tapia (Appellant) Woolworths Limited (Respondent)
Representation:	Counsel W Sharwood (Appellant) A Muller (Respondent)
Solicitors Baker Deane & Nutt Solicitors (Appellant) King & Wood Mallesons (Respondent)
File Number:	SCA 106 of 2015
Decision under appeal:	Court/Tribunal: Industrial Court of the Australian Capital Territory Before: Industrial Magistrate Walker Date of Decision: 13 November 2015 Case Title: Gabriel Tapia v Woolworths Limited Citation: [2015] ACTIC 2

Mossop AsJ:

Introduction

This is an appeal against a decision of the Industrial Court: Gabriel Tapia v Woolworths Ltd [2015] ACTIC 6. The appeal is brought pursuant to s197 of the Workers Compensation Act 1951 (ACT) (WC Act). It relates to the application of the employment connection test provided for in s 36B of the WC Act. Because of the geographical circumstances of the Territory, there have been a significant number of decisions of this Court in relation to the application of this test: Hanns v Greyhound Pioneer Australia Ltd (2006) 196 FLR 361; Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34; Fed Consulting Services Pty Ltd v Gelo [2014] ACTSC 185; Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1.

In the present case, in addressing the first element of the cascading test provided for by s 36B(3), the Industrial Court determined that the appellant “usually worked” in both the Australian Capital Territory and New South Wales. It was therefore required to apply the other tests provided for in that subsection and, in doing so, the Court concluded that New South Wales was the Territory or State of connection and hence that the WC Act did not apply to the appellant’s claim.

The only issue in the present appeal relates to the application of the first element of the test in s 36B(3). If the Australian Capital Territory is the only Territory or State where the worker “usually works” then the WC Act applies and the appeal must be allowed. If,…

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 Tapia v Woolworths Limited

Details

AGLC: Tapia v Woolworths Limited [2016] ACTSC 129
Case: [2016] ACTSC 129
Decision Date: 17 June 2016

CaseChat Overview and Summary

In the case of Tapia v Woolworths Limited, the plaintiff, Mr Tapia, appealed against a decision of the Industrial Court of the Australian Capital Territory, which found that he was not entitled to workers' compensation under the Workers Compensation Act 1951 (ACT). The dispute centred on the interpretation of section 36B of the Act, specifically the "employment connection test" and the meaning of "State or Territory of connection." Mr Tapia argued that the Australian Capital Territory was the only place where he "usually works," and sought to establish that a temporary arrangement did not preclude him from being entitled to workers' compensation.

The primary legal issue before the court was whether the Australian Capital Territory was the only territory or state where Mr Tapia "usually works" within the meaning of section 36B(6)(b) of the Workers Compensation Act 1951 (ACT). The court was also required to determine the meaning of "temporary arrangement" in the context of section 36B(6)(b) of the Act. The court had to consider whether Mr Tapia's temporary work arrangement in the Australian Capital Territory could still establish an employment connection under the Act.

The court found that the Australian Capital Territory was not the only place where Mr Tapia "usually works" because he had a significant and regular connection to other states. The court held that a "temporary arrangement" in section 36B(6)(b) referred to a short-term or intermittent arrangement that did not establish a regular or ongoing connection to a particular state or territory. Given that Mr Tapia's employment was not regularly or usually performed in the Australian Capital Territory, the court concluded that he did not satisfy the employment connection test. The court's reasoning and outcome meant that Mr Tapia's appeal was dismissed, and he was not entitled to workers' compensation under the Workers Compensation Act 1951 (ACT).

Orders

Orders of the court

See [47]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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