Waterhouse v Workers' Compensation Regulator - [2024] QIRC 115

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Waterhouse v Workers' Compensation Regulator [2024] QIRC 115
PARTIES:	Waterhouse, Amy (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2023/6
PROCEEDING:	Appeal against review decision of the Workers' Compensation Regulator
DELIVERED ON:	15 May 2024
HEARING DATES:	8 and 9 May 2024
MEMBER: HEARD AT:	Merrell DP Brisbane
ORDERS:	The orders contained in paragraph [70] of these reasons for decision
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – INJURIES OUT OF JURISDICTION – TERRITORIAL CONNECTION – EMPLOYER: PLACE OF EMPLOYMENT OR PRESENT IN JURISDICTION – appeal against review decision of Respondent – Appellant's de facto partner was employed by a company and usually worked in Queensland – Appellant's de facto partner then worked in New South Wales for the same company – on 6 July 2021, in New South Wales, the Appellant's de facto partner was involved in a single motor vehicle accident and suffered fatal injuries – Appellant applied for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 in respect of her de facto partner's death – application denied by WorkCover Queensland because the Appellant's de facto partner's employment was not connected with Queensland – Respondent confirmed WorkCover Queensland decision on review – whether Appellant's de facto partner's employment was connected with Queensland within the meaning of s 113 of the Workers' Compensation and Rehabilitation Act 2003 – Appellant's de facto partner's employment was not connected with Queensland within the meaning of s 113 of the Workers' Compensation and Rehabilitation Act 2003 – review decision confirmed – parties to be heard about costs
LEGISLATION:	Industrial Relations (Tribunals) Rules 2011, r 41 Workers' Compensation and Rehabilitation Act 2003, s 113 and s 558
CASES:	Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 Covill v WorkCover Queensland [2022] QSC 171 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
APPEARANCES:	Mr M. Pope of Counsel instructed by Ms R. Derek of Derek Legal. Mr P. O'Neill of Counsel directly instructed by Ms R. Matheson of the Respondent.

Reasons for Decision
Introduction

Mr Benjamin Karl Kennan was employed by A&L Windows (Qld) Pty Ltd ('A&L'). From December 2014 to August 2019, Mr Kennan was employed by A&L as a Service Technician. During that time, he usually worked in Queensland. From August 2019 to March 2021 Mr Kennan worked as a Territory Manager for A&L in Queensland. From 29 March 2021, Mr Kennan worked for A&L as a Service Technician in New South Wales. On 6 July 2021, Mr Kennan was involved in a single motor vehicle accident in New South Wales. Mr Kennan died as a result of the injuries he suffered in that accident.
On 2 February 2022, Ms Amy Waterhouse lodged an application with WorkCover Queensland in respect of Mr Kennan's death. Ms Waterhouse described herself as Mr Kennan's de facto partner. By decision dated 8 November 2022, WorkCover Queensland rejected Ms Waterhouse's application on the basis that Mr Kennan's employment was not connected with…

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.

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Details

AGLC: Waterhouse v Workers' Compensation Regulator [2024] QIRC 115
Case: [2024] QIRC 115
Decision Date: 15 May 2024

CaseChat Overview and Summary

Waterhouse sought review of the Respondent's decision to deny her claim for workers' compensation under the Workers' Compensation and Rehabilitation Act 2003. Waterhouse's de facto partner, Mr Kennan, was employed by a company and worked in Queensland and New South Wales. On 6 July 2021, Mr Kennan was involved in a fatal motor vehicle accident in New South Wales. Waterhouse applied for workers' compensation in respect of Mr Kennan's death but the application was denied because his employment was not connected with Queensland. The Respondent confirmed the denial on review.

The court was required to decide whether Mr Kennan's employment was connected with Queensland within the meaning of section 113 of the Workers' Compensation and Rehabilitation Act 2003. In particular, the court needed to determine if Mr Kennan's employment was connected with Queensland, and if so, whether there was a territorial connection for the purposes of workers' compensation. The court considered section 113 of the Act, which sets out the circumstances in which an injury is deemed to have occurred in the course of employment. The court also considered the meaning of "usually works" in section 113(3) of the Act, and the mutual intention of the employer and employee.

The court found that Mr Kennan's employment was not connected with Queensland within the meaning of section 113 of the Act. The court considered that the term "usually works" in section 113(3) of the Act refers to the place where the worker habitually or customarily works or works in a regular manner. The court held that the worker's usual place of work was not determined by the majority of time spent in a particular state, but rather by the worker's work history with the employer and the intention of the worker and employer. The court held that there was no State in which Mr Kennan "usually works" in that employment. The court also considered the mutual intention of the employer and employee, which was not present in this case. Therefore, the court found that the review decision of the Respondent was correct and confirmed the review decision.

The orders of the court are that the review decision of the Respondent is confirmed, and that the parties are to exchange and file written submissions on the costs of the hearing by 4.00 pm on Wednesday, 29 May 2024. The decision on costs will be determined on the papers unless otherwise ordered.

Orders

Orders of the court

The orders contained in paragraph [70] of these reasons for decision

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 113 of the Act was considered by Applegarth J in Covill v WorkCover Queensland.[1] In respect of s 113(3) of the Act, his Honour stated:[2][1] [2022] QSC 171.[2] Citations omitted.[31] Section 113(3) is quoted above. The meaning of "usually works" in s 113(3)(a) was discussed in Ferguson. It and other authorities apply the ordinary meaning of "usually" in its statutory context to mean the place where the worker habitually or customarily works or works in a regular manner. The State, if any, in which the worker "usually works" in that employment is not determined by deciding the State in which the worker spends the majority of his or her time. The time spent in any particular State is still relevant. The sub-section does not involve a mathematical test. [32] There may be no State in which the worker "usually works". As was observed in Ferguson: "The fact that a worker's time in employment is predominantly spent in one State does not necessarily mean that the State is the only State in which the worker "usually works". The worker will usually work in more than one State if the worker habitually or customarily works in a second State." [33] Section 113(6) provides that 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 singular word "intention" suggests a mutual or shared intention held by both the worker and employer, rather than a subjective intention held by one or the other. Any mutual intention is a matter to which regard must be had. [34] The Act does not preclude having regard to other circumstances that are not mentioned in s 113(6) which may be relevant in the particular case. For example, s 113 does not preclude having regard to the probability that the worker will be offered future work by the employer and the probability that the worker will accept such an offer. The expected duration of a contract that applies at the time of injury may be relevant to ascertaining the worker’s employment. So too may be the availability of future work there or in other places. Expectations based on representations made by one party to the other may be relevant even if they do not constitute a contractual term or a binding legal promise. Any pattern that emerges from the worker’s work history with the employer is relevant. The likelihood or improbability that the employer will offer the employee work in the future, along with the likelihood that the employee will accept such an offer, may also be relevant in determining the relevant employment.[35] As to work history, s 113(6) of the Act does not provide that regard must be had to the worker’s work history with the employer over a certain period. In the absence of a statutory framework that compels having regard only to a specific period prior to the date in question, it would appear to be a matter for the trial judge to work out, having regard to the particular circumstances of the case, what an appropriate frame of reference is.[36] In some circumstances, where there has been a lengthy employment relationship it may be possible to discern a pattern of work over a substantial period. If the frame of reference is much shorter, then the same statutory element is applied in different circumstances. If during the relevant period the worker worked in more than one State the ultimate issue would be the same. It involves consideration of the work history and the expected future, if any, of the relationship.[37] In the circumstances of a particular case, where the matters to which regard must be had under s 113(6) and the matters to which regard may be had lead to the conclusion that there is no one State in which the worker "usually works" in that employment, then consideration is given to the State, if any, in which the worker is "usually based" for the purposes of that employment. The meaning of "usually based" is discussed in Ferguson. The statute contemplates there may be cases in which there is no State or no one State in which the worker is "usually based" for the purposes of his or her employment. In that event, the cascading test requires consideration of the State in which the employer’s principal place of business in Australia is located. The evidence Ms Waterhouse's relationship with Mr Kennan

Decision

Reasons for decision

I make the following orders:1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 3 January 2023 (Reference 63473) is confirmed.2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:(a)the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Wednesday, 29 May 2024; and(b)unless otherwise ordered, the decision on costs be determined on the papers.

Ratio Decidendi

Legal Principle Established

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