Tapia v Woolworths Limited
[2016] ACTSC 129
•17 June 2016
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 (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 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, on the other hand, the Industrial Court was correct in its conclusion that no single Territory or State should be identified for the purposes of the first limb of the test, then the appellant does not challenge the Industrial Court’s application of the remaining limbs of the cascading test in s 36B(3). Thus, the outcome of the present appeal is entirely dependent upon whether the Industrial Court was correct in its conclusion that the appellant usually worked in both the Australian Capital Territory and New South Wales.
Relevant statutory provisions
As at the date of the appellant’s injury, 12 April 2013, the relevant provisions of the WC Act provided:
36A Meaning of Territory or State of connection etc
(1) In this Act:
Territory or State of connection, in relation to the employment of a worker, means—
(a) the Territory or State with which the employment of the worker is connected, as determined under this part; and
...
(2) In this part:
employer, in relation to a Territory or State, includes an employer within the meaning of the workers compensation law of the Territory or State.
employment, in relation to a Territory or State, includes employment within the meaning of the workers compensation law of the Territory or State.
worker, in relation to a Territory or State, includes a worker within the meaning of the workers compensation law of the Territory or State.
36B 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.
...
(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.
...
36C Determination of Territory or State of connection in workers compensation proceedings
(1)If the question of whether the ACT is the Territory or State of connection arises in a proceeding in a court in relation to a claim for compensation under this Act, the court must determine the Territory or State of connection in accordance with section 36B (Employment connection test).
(2) Subsection (1) does not apply if there is a determination of the Territory or State of connection that is to be recognised under section 36E (Recognition of previous determinations of Territory or State of connection).
Because liability is imposed upon an employer at the point when the worker suffers an injury arising out of or in the course of the worker’s employment: WC Act s 31, it is the Act as at that date which is relevant. The Magistrate had regard to the Act as at the date of her decision, making reference to aspects of s 36B which were amended by the Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT). Although the Act made amendments of significance to s 36B, her Honour’s reliance upon the then current version of the legislation as opposed to the legislation as at the date of injury has not given rise to any ground of appeal and does not affect the outcome of this appeal.
The facts
The appellant was injured on 12 April 2013. On 15 June 2015 he filed an application for arbitration under the WC Act. The matter was heard on 9 November 2015 and a decision given on 13 November 2015. The facts were found by the Magistrate in the Industrial Court as follows:
3. The Applicant commenced employment with the Respondent on 19 March 2012 as a Duty Manager.
4. The terms and conditions of the Applicant’s employment in the position of Duty Manager were set out in a letter of offer dated 26 March 2012 and an attached Contract of Employment.
5. During the period from 19 March 2012 until the Applicant commenced his position as a Retail Operations Graduate, he did not work at any store location other than the Canberra Airport Supermarket.
6. On 17 January 2013 the Applicant was offered a new position as a Retail Operations Graduate.
7. The terms and conditions of the Applicant’s employment in that position were set out in a letter of offer dated 17 January 2013 and an attached Contract of Employment.
8. The Applicant commenced in the Retail Operations Graduate Program (“the Program”) on 11 February 2013.
9. The Program was to be conducted over a two year period and was divided into three phases. The expectation for successful graduates was appointment as a Team or Assistant Store Manager with the possibility for an exceptional graduate to be placed immediately as a Store Manager.
10. During the Program, the Applicant received instructions concerning his rotations from an Area Manager, Mr Darren Storer, and the NSW/ACT Human Resources Specialist Mr Paul Kelly.
11. Mr Rod Needham, the Store Manager for the Canberra Airport store, was appointed as the Applicant’s mentor for the purposes of the Program.
12. Between 11 February 2013 and 11 April 2013, the Applicant completed the following rotations in order:
Deli – two weeks at Canberra Airport store, in the ACT;
Bakery – two weeks at Queanbeyan store, in NSW;
Produce – two weeks at Queanbeyan store, in NSW;
Meat – two weeks at Queanbeyan store, in NSW; and
Seafood – two weeks at Mawson, in the ACT.
13. On 12 April 2013, the Applicant commenced another rotation with Long-life at the Queanbeyan store and on that same date, suffered an injury to his back.
14. On 15 April 2013 the Applicant completed a worker’s compensation claim form. His claim was initially accepted by the Respondent’s NSW worker’s compensation insurer, and the Applicant received payments of statutory benefits under the NSW workers compensation legislation.
15. Following the injury, the Applicant discontinued the Long-life rotation at the Queanbeyan store, and then completed an Office rotation, Front-end rotation and Long-life rotation at the Gungahlin store.
16. During the period 29 July 2013 to 17 November 2014, the Applicant completed a number of further rotations at various store locations; at Queanbeyan, Jerrabomberra and Jindabyne in NSW; as well as Weston Creek, Conder, Calwell, Kambah, Woden and Mawson in the ACT. Each placement was for approximately one to two months
17. The Applicant completed the Program in February 2015.
18. On 17 February 2015 the Respondent offered the Applicant a new position as a Customer Service Team Manager at the Calwell store in the ACT. On 19 February 2015 the Applicant accepted the offer of the Customer Service Team Manager position.
19. In addition to the written agreed facts, the Applicant conceded that the employer’s principal place of business is NSW.
20. The Applicant gave oral evidence as did Mr Paul Kelly who, at the relevant time, was a Human Resource Manager for Woolworths in the local area. The following facts are drawn from their evidence and documents tendered as attachments to the agreed facts. They are uncontentious and are relied upon for this determination.
21. When the worker was employed initially as a Duty Manager with Woolworths from 19 March 2012, the contract specified that the worker would initially be based at the Canberra Airport Supermarket but indicated that he may be required to work at other locations from time to time although he in fact worked at the Canberra Airport Supermarket throughout this contract. He was there for approximately eleven months before the new contract began.
22. The second contract specified that the worker would initially be based at Yennora Administration Centre (which is in NSW) although again, he was advised that he may be required to work at other locations from time to time. The worker said that he understood that this meant that alternative locations were subject to his agreement.
23. At the start of the new contract, the worker did some brief initial training at Yennora.
24. During the graduate program, the worker reported to the graduate program manager, Ms Cassandra Piccimin, based in Yennora, and the area manager, Mr Darren Storer, and the human resource manager, Mr Paul Kelly, both of whom were based in Queanbeyan. He had a mentor, being the store manager at Canberra Airport during the program.
25. Also during the Program, the worker was paid from the head office centre rather than from a store as he had been when he had been working at the Canberra Airport Store. In fact it was usual for a person employed at a particular store to be paid from that centre.
26. Following completion of the Program, the worker was offered employment at Calwell in the ACT. Due to physical limitations he has not taken up that position and has been employed again at the Canberra Airport Store.
27. The worker was asked in cross-examination whether he was aware that following completion of the Program he could be offered a position anywhere in Australia. He responded that he had hoped for a position local to the ACT and that he would not be prepared to take a position in Queanbeyan or Jerrabomberra as it would take 55 minutes to drive to these locations. He conceded that some ACT locations, such as Conder and Calwell would require similar drive times as to Queanbeyan. He stated in respect to the offer of a position at Calwell that he was told that it was that location “or leave”, albeit that for medical reasons he has not yet commenced there. I infer from this that although the worker considered that he could not be required to work at a particular location, he was aware that ultimately his choice was to take what was offered to him or relinquish his employment.
28. Mr Paul Kelly confirmed that he was involved in recruitment of the worker for the Program. He stated the program was based in Yennora, was run and funded from there. The worker was the only person of about 15 on the program who was located in the ACT. Placement of the worker during the program was decided between Mr Storer and Mr Kelly with Mr Kelly advising the worker where he was required. Leave would be approved by both Mr Kelly and Ms Piccimin.
The Magistrate concluded that the appellant usually worked in both NSW and the ACT. The reasoning of the Magistrate was as follows:
39. The factual circumstances of this case are somewhat complicated by the fact that the worker change [sic] his contractual relationship with Woolworths part way through his employment with them. He spent 11 months as an employee in a Canberra store, working, paid and managed solely at that location on an on-going contract. He then entered in to a new agreement with very different contractual conditions. They were that he was initially based in NSW at Yennora, that he was managed at three levels in NSW and that he underwent a number of placements in the ACT and in NSW, where he was at the time of injury. Whilst the contract did not specify that placements were only in NSW and the ACT for this worker on the graduate program, those were in fact the locations, consistent with the worker’s residence within that region.
40. In the previous 12 months, the worker had worked the majority of the time in the ACT but also had significant periods of work in NSW. Under his second contract of employment, he had temporary arrangements for less than six months for work in both the ACT and NSW which, pursuant to subsection 36B(6)(b), must not be taken in to account. That still leaves the majority of the worker’s employment having been performed in the ACT in the preceding 12 months.
41. The employment history, however, is not the sole criteria for consideration of where a worker usually works. The parties’ intentions are also to be considered. The initial “base” for the first contract was the Canberra Airport Supermarket and for the second, the Yennora Administration Centre. There was no suggestion that the worker would operate on an ongoing basis from Yennora as an administration centre, given that he was undertaking training for store-based work. Both employment contracts specify that the worker “may be required to work at other locations from time to time”. In the first offer of employment contract, the worker was congratulated on his new role with “Woolworths Supermarkets”; in the second, it is with “NSW/ACT Supermarkets”. Had the first contract of employment continued as it was operating then, even if the worker had been temporarily transferred to Queanbeyan, it would have been clear that the ACT remained his usual place of work. However, arrangements under the new contract are significant to this determination.
42. The worker gave evidence that he intended to work in the ACT in the future and that he would leave his employment with Woolworths rather than travel to NSW because of the travel time involved. However, that was his plan after completion of the Program. Clearly during it, he both intended, as is evidenced by accepting the employment contract providing for it, and in fact did, work at other locations as required in the surrounding region, including three different locations in NSW. I infer from that that what would eventuate at the end of the program depended on various factors including his successful completion of the program and the employer’s requirements at that time.
43. The employer had kept its options open through the provision in the employment contract allowing direction to work at other locations. Given that the contract was specifically stated as being with ACT/NSW Supermarkets, I infer that those other locations would be within that region, according to requirements.
44. Sub-paragraph 36B(6)(a)(iv) operates only to require that the Court consider any period worked in another jurisdiction, even though workers compensation may be payable under the laws of that state. As the worker was paid under the NSW workers compensation scheme, this paragraph operates to require the Court to nonetheless consider the employment performed in NSW. However, as this was on a temporary basis of less than 6 months, this subsection is relevant as to evidence of the parties’ intentions but not for determining the 12 month work history.
45. In consideration of the above factors, as at the date of his injury, I identify that the worker “usually worked” in both the ACT and NSW.
Three points should be noted at this stage in relation to the Magistrate’s reasons.
First, she accepted (at [40]) the submission made by the appellant that the periods worked in different stores in NSW and the ACT under the second contract (identified in her reasons at [12], [13] and [22]) were “temporary arrangements” within the meaning of s 36B(6)(b) and hence had to be excluded from consideration.
Second, the Magistrate concluded that, even excluding these periods, “the majority” of the appellant’s employment was performed in the ACT in the preceding 12 months: reasons at [40]. However it is not clear, if the temporary periods were excluded, what the other periods of employment in NSW were.
Third, paragraph [44] of the reasons relates to the periods referred to in s 36B(6)(a)(iv). Her Honour appears to proceed on the basis that the application of paragraph (iv) was conditional upon payments having been made under the NSW workers compensation laws. That does not appear to me to be a requirement of the subsection. Rather it simply operates to require consideration of “any period during which the worker worked in a Territory or State” or was there “for the purposes of employment” whether or not under the law of that place the worker was regarded as working or employed in that place.
Submissions
The appellant addressed each of the considerations in s 36B(6) separately.
In relation to s 36B(6)(a)(i) (the worker’s work history with the employer over the previous 12 months) the appellant contended that, except for training rotations totalling six weeks during which the appellant was working at the Queanbeyan store, he worked exclusively in the ACT. The appellant contended that her Honour was correct in accepting that she was not able to take into account temporary arrangements under his second contract involving work in both the ACT in New South Wales. As a consequence, the appellant submitted that the appellant’s work history with the employer over the previous 12 months “exclusively points towards the ACT as being the relevant jurisdiction”.
In relation to s 36B(6)(a)(ii) (the worker’s proposed future working arrangements) the appellant submitted that the proposed future working arrangements were strongly influenced by his recent entry into the graduate program that started only two months before. That programme anticipated a two-year training programme leading to a management role with the respondent and that is what the appellant expected. The program was silent on the location of the work for the appellant at the conclusion of the program. The appellant was hopeful that it would be near where he lived and he gave evidence that he would not take a position in Queanbeyan or Jerrabomberra due to the driving time to those stores. He also gave evidence that his reporting lines and supervision lines did not change when he entered the graduate program but rather remained within the ACT.
In relation to s 36B(6)(a)(iii) the appellant gave evidence about his future intentions. The facts pointed to by the appellant were his evidence that:
(a)he was living in Gungahlin at the time when he was injured;
(b)he had a partner who worked in Gungahlin who walked to work and did not drive;
(c)he was the only ACT person in the graduate program;
(d)his expectation at the conclusion of the graduate program was to get work near where he lived;
(e)the Queanbeyan store was a 55 minute drive from his house, as was the Jerrabomberra store;
(f)the Majura/Canberra Airport store was a 20 minute drive.
The appellant submitted that this evidence exclusively favoured identification of the ACT as being the jurisdiction where the appellant usually worked. He contended that the employer’s intention was non-specific when it came to jurisdiction.
In relation to s 36B(6)(a)(iv) (any period during which the worker worked in a Territory or State or was in a relevant place for the purposes of employment) the appellant contended that this provision did not have any application to the present matter.
In relation to s 36B(6)(b) (the exclusion of consideration of “temporary arrangements” of not longer than six months) the appellant contended that the aggregate period of six weeks during which he was undertaking training rotations at the Queanbeyan store was a temporary arrangement and must be ignored for the purposes of determining the Territory or State of connection. The appellant contended that the Magistrate was correct in concluding that this period was not to be taken into account.
The respondent emphasised that the contract which commenced in February 2013 involved a new and distinct employment arrangement. It submitted that having regard to the fact that the appellant was injured only three months after entering the new employment arrangement the future intentions of the parties were of significance. It submitted that a temporary arrangement for the purposes of s 36B(6)(b) applied in a situation where a worker was generally located in a single jurisdiction for the purposes of employment but was temporarily required to work in a different jurisdiction. It submitted that the appellant’s submissions, which applied the temporary arrangement exception in circumstances going beyond such a situation, would completely undermine the work to be done by s 36B(6)(a). In support of its submissions on the operation of the temporary arrangement exception, it made reference to the legislative history of the employment connection test in the WC Act. It submitted that upon the proper interpretation of the section, the appellant was properly regarded as a worker of New South Wales.
Necessarily implied in the respondent’s submissions was the contention that the Magistrate was in error when she accepted the appellant’s submission that the periods spent at the Queanbeyan store were temporary arrangements that must be ignored under s 36B(6)(b). In those circumstances the respondent should have filed a notice of contention under r 5115 of the Court Procedure Rules 2006 (ACT). However, no point was taken about this and, having regard to the narrow scope of the appeal, it was able to be fully and properly argued without notice having been given under the rule. In those circumstances it is appropriate to make an order under r 6 dispensing with the requirement to serve a notice under r 5115 and I will make such an order.
Temporary arrangements
Of central importance to the appellant’s argument is the proposition that the periods during which he was working in NSW under the second contract were “temporary arrangements” for the purposes of s 36B(6)(b), and are by reason of that section required to be ignored when determining where the appellant usually worked. If they must be ignored then the work history of the appellant over the previous 12 months only involved work in the Australian Capital Territory except for the two days spent at the commencement of his second contract at Yennora in NSW.
Counsel were unable to identify any authority relevant to the interpretation of the meaning of “temporary arrangement” in s 36B(6)(b).
The effect of the phrase depends largely upon whether temporary arrangement simply means an arrangement of short duration or whether it connotes some departure from a “normal” state of affairs. If the former then the appellant has a stronger argument for contending that the time spent in NSW involved a temporary arrangement. If the latter then the appellant’s argument is more difficult because, in the light of the terms of the second contract and the training program it involved, it is more difficult to say that the periods in NSW were a departure from the normal state as opposed to being the normal work pattern during the training period.
Legislative history
In order to work out the meaning of the Act it is permissible to have regard to the legislative history of the provisions, which carved out from the considerations in s 36B(6)(a) temporary arrangements for workers to work outside the Territory.
A cascading test intended to determine the jurisdiction in which a worker should be compensated was first introduced into the WC Act by the Workers Compensation (Amendment) Act 1997 (ACT). That Act introduced s 7A into the WC Act. It is that provision which was the subject of the decision in Hanns v Greyhound Pioneer Australia Ltd (2006) 196 FLR 361. Section 7A also introduced the concept of a “defined temporary arrangement” as a circumstance to be ignored in determining the jurisdiction in which compensation was payable. The section was as follows:
7A. Compensation limited to Territory workers
(1) An employer is liable to pay compensation only in respect of an injury suffered by a worker of this Territory.
(2) For the purposes of this Act, a worker is a worker of whichever Territory or State is—
(a) the Territory or State in which the worker usually carries out the work of the employment concerned;
(b) if no Territory or State, or no single Territory or State, is identified by paragraph (a) — the Territory or State in which the worker’s base for the purposes of that employment is located; or
(c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b) — the Territory or State in which the worker was hired for or otherwise taken into that employment.
(3) If a worker usually carries out the work of his or her employment in a particular Territory or State (“the home Territory or State”), but pursuant to a defined temporary arrangement carries out that work elsewhere (whether within or outside Australia), the worker is nevertheless to be regarded as a worker of the home Territory or State while carrying out the work elsewhere.
...
(5) In subsection (3) —
“defined temporary arrangement”, in relation to the employment of a worker, means an
arrangement that is part of that employment for the worker to carry out the work of the employment for a period that may reasonably be thought likely to be of less than 6 months’ duration.
The WC Act was substantially amended in 2001. The amendments modified s 7A which was subsequently renumbered as s 33. In its modified form the section provided:
33 Compensation limited to Territory workers
(1) An employer is liable to pay compensation only in relation to a worker of the Territory.
(2) For this Act, a worker is a worker of whichever Territory or State is —
(a) the Territory or State where the worker usually carries out the work of the employment concerned; 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’s base for the purposes of that employment is located; 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 worker was hired for or otherwise taken into that employment.
(3) A worker is taken to be a worker of a particular Territory or State (the home jurisdiction) if the worker carries out the work of the worker’s employer outside the home jurisdiction (whether within or outside Australia) only if—
(a) the worker usually carries out the work of the worker’s employer in the home jurisdiction; and
(b) the worker carries out the work elsewhere because of an arrangement (that is part of the worker’s employment) for the worker to carry out the work of the employment outside the home jurisdiction for a period that may reasonably be thought likely to be less than 6 continuous months in any 12 month period.
...
The test articulated in subsection (3) is notable because the arrangement referred to in paragraph (3)(b) is a departure from the usual (but not necessarily exclusive) place of work in the home jurisdiction.
The Workers Compensation Amendment Act 2003 (No 2) inserted Pt 4.2A and the employment connection test in the form in which it now operates. Of these amendments the Explanatory Statement relevantly provided:
This clause inserts a new Part 4.2A Employment Connection with ACT or State.
Part 4.2A implements new, nationally agreed arrangements for cross-border workers compensation coverage. The intention of the new arrangements are that an employer should only need one workers compensation policy for each worker that they employ, regardless of whether that workers is required to work in different workers compensation jurisdictions during the course of their employment.
...
New subsection 36B(3) establishes three tests for working out a worker’s Territory or State of connection. This ‘employment connection test’ is the central test for the new cross-border provisions, and will be used to determine which State or Territory workers compensation laws apply to an injured worker making a claim for compensation.
The employment connection test is a three-part test that examines the history of and intentions of the parties to the employment relationship. The test is progressive, in that, if a Territory or State of connection is not ascertained from the first limb of the test, the second limb of the test is examined. If the second limb of the test does not identify a single Territory or State of connection, then the third limb of the test is examined.
Three examples of how the test would be applied are set out below:
A. Worker attending a conference in another jurisdiction
A worker employed by a Canberra employer usually works in Canberra, but is required to attend a conference over a period of three days in Melbourne. It is possible to determine the worker’s Territory or State of connection through the application of the first test in paragraph 36B(2)(a): the worker usually works in the ACT, and is only visiting Victoria temporarily for work purposes.
If the worker was injured while at the conference in Melbourne, the worker would be covered by the employer’s ACT workers compensation policy and is only entitled to compensation under the ACT workers compensation scheme.
In this example, the first part of the test in paragraph 36B(3)(a) determines the Territory or State of connection, paragraphs (b) and (c) do not need to be considered.
B. Courier drivers working in both Canberra and New South Wales
A courier service has its head office in Canberra, and provides courier services to businesses in Canberra, Queanbeyan, Yass and Braidwood. Workers (who live in both the ACT and New South Wales) report to the office in Canberra to collect the courier vans and initial deliveries. Directions are received via radio throughout the day. The workers cross the border regularly and cannot be said to ‘usually work’ in either ACT or NSW.
In this example, it is not possible to determine the Territory or State of connection using the first part of the test in paragraph 36B(3)(a), as the workers do not ‘usually work’ in either the ACT or New South Wales. The second part of the test in paragraph 36B(3)(b) is then considered.
The workers in this example are ‘usually based’ in the ACT for the purposes of their employment, as they are required to report to the courier service’s head office in Canberra to collect their delivery vans and initial orders each morning. Therefore, the Territory or State of connection for these workers is the ACT, and the courier service would need to obtain an ACT workers’ compensation policy for the courier drivers. If the workers were injured while making deliveries in New South Wales, they could only make compensation claims under the ACT workers compensation scheme.
In this example, the first part of the test in paragraph 36B(3)(a) did not determine the Territory or State of connection, so the second part of the test in paragraph 36B(3)(b) was considered. The second part of the test determined the Territory or State of connection, so it was not necessary to consider the third part of the test in paragraph (c).
C. Information technology consultants working across several States
An IT consulting company has its head office in the ACT. It operates computer data warehousing facilities in the ACT, Queensland, New South Wales and South Australia.
Trouble-shooters are employed full time by the company and are flown between different sites where they remain for periods ranging from a few weeks to a few months, until the issue is resolved. They are then directed and flown to the next location following a short break, over which time they return to their homes. The workers use equipment and materials at the company’s various sites.
The first part of the test in paragraph 36B(3)(a) would not determine these workers’ Territory or State of connection, as they do not usually work in any one State or Territory, but are routinely required to work in different workers compensation jurisdictions.
The second part of the test in paragraph 36B(3)(b) similarly does not determine these workers’ Territory or State of connection, as the workers do not usually report to any particular location or ‘base’ to collect equipment or materials, so cannot be said to be ‘usually based’ in a particular jurisdiction.
Under the third limb of the test, in paragraph 36B(3)(c), the ACT would be the Territory or State of connection as this is where the workers’ employer has its principal place of business.
...
Subsection (6) provides some guidance as to when a worker can be said to ‘usually work’ in a jurisdiction for the purposes of applying the first limb of the test in paragraph 36B(3)(a). In deciding whether a worker ‘usually works’ in a Territory or State, regard must be had to:
· the workers’ employment history with the employer over the preceding 12 months;
· the worker’s proposed future working arrangements;
· the intentions of the worker;
· the intentions of the employer;
· any period during which the worker worked in another Territory or State for the employment (however, arrangements where the worker is working in another jurisdictions in a temporary capacity for less than six months must not be considered).
Therefore, if a worker who usually works in the ACT is temporarily placed by their employer in another jurisdiction for a period of less than six months, this will generally be disregarded in working out where the worker ‘usually works’ under paragraph 36B(3)(a). However, if the worker is sent to work in another jurisdiction temporarily for more than six months out of a twelve-month period, it is likely that they will be considered to usually work in that other jurisdiction, as it is necessary for the purposes of the test to examine the workers employment history over a period of 12 months.
The Explanatory Statement is useful because it provides examples of the operation of the provisions which shed light on the meaning of “temporary arrangement” as well as an overall description of the operation of the s 36B(6)(b) in the last quoted paragraph.
Conclusions as to the temporary arrangement exclusion
When examining this history it is important to recognise that it is the present form of the Act to which effect must be given. In this case the historical antecedents of the present provision must be treated with some caution as it is not a case where the legislature has explicitly attempted to maintain in its amended Act the same effect as the previous form of the Act. However, given the exclusion of certain temporary arrangements from the scope of work to which regard may be had in determining whether the WC Act applies, it is appropriate to have regard to the legislative history to get an insight into the circumstances that the legislature was seeking to address.
The whole of the relevant phrase in s 36B(6)(b) is “temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months”. It does not necessarily require the arrangement to involve working exclusively in that Territory or State. It can therefore be an arrangement in which the worker works in that Territory or State in addition to the Territory or State where the worker would otherwise usually work.
The concept of a “temporary arrangement” is designed to cover the situation where there has been a “usual” place of employment but, because of a temporary arrangement to work elsewhere, the conclusion is now open that the second place is (either solely or additionally) a usual place of employment.
It is most readily applied after the usual place or places of employment are identified. Thus, it is not necessary to invoke the concept in relation to short term work away from the usual place of employment such as that described in example A given in the Explanatory Statement set out at [28] above, namely, a worker visiting a different State for a conference. That activity, while occurring in a different State, is not sufficient to displace or add to what would otherwise be considered to be the “usual” place of employment. It is not necessary to invoke the “temporary arrangements” exclusion in order to identify where the worker “usually works”.
However, temporary arrangements of longer duration, do have the potential to establish a situation where the temporary place of employment is the usual place of employment or, alternatively, an additional usual place of employment. It is in those circumstances that the exclusion is necessary to ensure that, in the category of case to which it applies, the worker’s usual place of employment is retained.
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 arrangements 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.
Returning to the examples in the Explanatory Statement at [28] above, the temporary arrangements exclusion does not operate to catch the occasional journey elsewhere such as described in example A in the Explanatory Statement. Such a journey does not affect the usual place of employment and hence the exclusion need not be deployed. Nor does the temporary arrangements exclusion capture each individual journey by a courier such as is described in example B in the Explanatory Statement. Each such journey is not a “temporary arrangement” but simply a usual part of the courier’s job. Finally it does not apply to the IT troubleshooters in example C because their change of jurisdiction is not a temporary arrangement but how they usually work. So interpreted the temporary arrangement exclusion does not undermine the operation of the Territory or State of connection regime by catching, and hence excluding from consideration, too broad a range of work in other jurisdictions.
Application in the present case
Following the methodology outlined above, if regard is had to the six weeks working in different roles at the Queanbeyan store then it could not be said that the ACT was the only place where the appellant usually worked. Depending upon the temporal frame of reference that is adopted, he either usually worked in New South Wales or, as the Magistrate found, he worked in both NSW and the ACT.
Given that the outcome of the analysis has been affected by the work in the Queanbeyan store, following the methodology outlined above, the issue is whether the work in Queanbeyan is the result of a “temporary arrangement under which the worker works in a Territory or State for a period of less than 6 months”.
In my view, that issue must be determined in the light of the contract of employment between the parties and the other circumstances surrounding his employment. The fact of fundamental significance in the present case is the fact that the parties entered into the second contract of employment commencing in February 2013. That contract had the appellant commencing in Yennora and then being assigned to other stores as required by his training program. There was nothing in the contract that identified his posting as being to any particular store or limited it to stores within the ACT. The evidence as to what was involved indicated that it involved a two-year training period during which he would be required to do time at different stores either in NSW or the ACT, working in various positions. So far as his contract was concerned it could not be said that he was to usually work only in the ACT. So far as his actual work under that contract was concerned he did a two day period at Yennora in NSW, two weeks in the Canberra Airport Store and six weeks at Queanbeyan, two weeks at Mawson and was just starting another rotation at the Queanbeyan store when he was injured.
During the two-year period under his contract as a retail operations graduate his place of employment could be either NSW or the ACT depending upon where he was placed for training purposes. Because of the temporary nature of each of his positions during the duration of his training as a retail operations graduate, any temporary posting was not a “temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months”. The temporary postings were simply part of the job rather than being a temporary departure from an otherwise existing state of affairs.
As I have found the second contract to be of fundamental importance, that has focused attention on the last three months of his employment prior to his injury. In adopting that approach I have not ignored the fact that where a worker usually works is sensitive to the temporal frame of reference. Different outcomes can be obtained if a narrow frame of reference is adopted as opposed to a broad one. The statute fixes upon a 12-month period as the period required to be given consideration, but not necessarily mandated as the only appropriate frame of reference. That 12-month period captures a worker’s “work history with the employer” and is not confined to a particular contractual arrangement.
If only the period under the second contract is examined then the most likely conclusion is that the appellant usually worked in both NSW and the ACT. If, however, the frame of reference is shifted back to the 12-month period prior to the accident then that incorporates 11 months working exclusively at the Canberra Airport store. That different frame of reference obviously shifts the proportion of the appellant’s time working in the two jurisdictions in favour of the ACT. Had there been no change of contract and the six weeks spent in Queanbeyan been a temporary arrangement in place after which the appellant would return to his position at Canberra Airport (or some other ACT store) then the temporary arrangement qualification would have applied, the temporary arrangement ignored, and the appellant's employment found to have been connected to the Territory.
However, because of the second contract, the work in Queanbeyan was not a temporary departure from a usual state of affairs. It was the new normal. It is not, in my view, possible to ignore the change in contractual arrangements which underpinned the change in work arrangements. Those changes meant that for a two-year period he would have no fixed store at which he worked and, although he might hope to receive some of his training at the Canberra Airport store or at other stores in the ACT, there was no certainty that this would occur. The second contract had the effect of removing any contractual indication that his employment was to be only or “usually” in the ACT and put in place a structure which meant that there would be a series of temporary employment locations rather than one usual place of employment. Therefore even though empirically, in the 12 months prior to his accident, the vast majority of his time was spent working at the Canberra Airport store, that is not sufficient to confine his usual place of employment to the ACT.
Conclusion
Because the temporary arrangement exclusion did not compel the periods spent at the Queanbeyan store to be ignored and because of the change in contractual arrangements in February 2013 the considerations in s 36B(6)(a) can be summarised as follows:
(i) While the work history with the employer over the previous 12 months involved the appellant working for the majority of that period in the ACT, under his new contract he had worked in both the ACT and New South Wales and had no permanent location for his employment.
(ii) The proposed future working arrangements involved a continuing arrangement under the retail graduate program which, as pointed out above, involved a series of limited term positions which under the contract and in reality could have been in the ACT or New South Wales, notwithstanding the appellant’s preference for a position close to his home in the ACT.
(iii) The intention of the appellant was to express a preference for employment in the Territory close to his home. While it is possible to infer that the employer would have regard to the appellant’s place of residence and the desirability of retaining the appellant as an employee, it is most likely to have positioned the plaintiff in the Canberra/Queanbeyan area based upon operational considerations and the need to achieve the goals of the training program.
(iv) The periods during which the appellant worked in the ACT and New South Wales have been addressed in relation to consideration (i).
In the light of these considerations, it is clear that the Magistrate was correct in her conclusion that s 36B(3)(a) did not determine the Territory or State of connection of the appellant’s employment and the remaining paragraphs in s 36B(3) needed to be applied. As a consequence, the appeal must fail.
Orders
The appeal must be dismissed. The parties accepted that costs would follow the event and in my view that is appropriate.
The orders of the Court are:
1. The requirement to serve a notice of contention under r 5115 is dispensed with pursuant to r 6.
2. The appeal is dismissed.
3. The appellant is to pay the respondent’s costs.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 17 June 2016 |
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