Avon Products Pty Ltd v Falls [2009] ACTSC 141

Supreme Court of the ACT|2009-10-19|Before: Higgins CJ

1. This is an appeal from a decision of Special Magistrate Cush of 11 February 2009. His Honour, on the application of the appellant employer, determined that this Territory is the appropriate State or Territory in respect of a claim made by the respondent worker for compensation arising out of an injury allegedly suffered by the worker between May 2007 and 28 March 2008. The nature of the injury was "mental injury" sustained as a result of "harassing, bullying and intimidating behaviour of supervisor". The application for arbitration was made by the worker on 20 August 2008. The answer of the employer, dated 6 November 2008, raised an issue as to whether the Australian Capital Territory (ACT) was the relevant State of connection pursuant to s 36A to 36D of the Workers Compensation Act 1951 (ACT) (the Act). The employer contended that "Pursuant to Section 36B(3)(b) and (c); being that the applicant's base for employment is Jerrabomberra New South Wales (NSW), her direct manager's base for employment is Bargo NSW and Avon's registered office is in Sydney NSW" hence that the "State of connection" was NSW. The Territory or State of connection is deemed to be the appropriate jurisdiction to determine a compensation claim.

An employer with workers in different jurisdictions must still maintain coverage in each jurisdiction where the employer has workers.

3. The legislative provisions adopted in the ACT are in Part 4.2A of the Act. The central concept is the Territory or State of connection in relation to the employment of a worker. Under s 36A of the Act that means:

(a) The Territory or State with which the employment of the worker is connected, as determined under this part;

4. That determination is governed by s 36B of the Act which provides:

(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

(4) [Not relevant]

(5) If no Territory or State is identified for a worker by subsection (3) or (4), the worker's employment is connected with the ACT if -

(a) the worker is in the ACT when injured; and

(b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia.

(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

5. The worker's employment history with the employer was not in contest. She commenced employment with the employer on 24 November 1991. She was employed as a sales manager, with responsibility for sellers of the employer's products in a defined area comprising the ACT and some part of NSW.

6. In about 1996 she changed her place of residence from Rivett ACT to Jerrabomberra NSW. In about 2005, her area of responsibility was altered so as to be limited to the ACT only. That remained the situation until she ceased work.

7. The worker's affidavit, which was not relevantly disputed, detailed her work practices as spending 8 - 10 hours daily working in the ACT. She was required also to do "book work" most of which was done at home but some of which was done whilst she was in the ACT. She answered to a supervisor based in Bargo NSW and the employer was said to be "situated" at Brookvale NSW. It was not apparent whether that was a base of operations or merely a registered office.

8. Clearly, over the 12 months prior to the termination of employment, the worker had performed all of her income producing activity in the ACT but performed a significant minority of her duties, being clerical in nature, in NSW. But for the separation of the worker from the appellant's employ, that would have continued. There was no other "relevant place".

9. His Honour, correctly in my view, first examined the issue as to whether the worker "usually works" in the ACT. In considering that issue his Honour gave consideration to the only aspect of her performance of her duties based in NSW, that is book work performed at home. He said:

[15] It is not in dispute that book work is part of her duties. It is a subsidiary part. The fact that she does it at her place of residence is essentially irrelevant. The book keeping could be done from her car in the ACT or elsewhere. It could be done anywhere. It does not require a specific "locus" per se. I am not aware that there is any direction to the worker by her employer that book work be done from her residence or be done in NSW. It is not a requirement of her employment that she live in NSW.

[16] The way the argument has been put, if the worker had moved her residence back to a suburb in the ACT 18 months ago, then there could be no argument the ACT was not the place where she usually works.

10. None of those factual conclusions was disputed. Nor, in my view, was any other conclusion open on the evidence.

11. However, the employer contended that the question as to where it required work to be done was irrelevant. The Human Resources (HR) manager of the appellant asserted that the worker was "... required to work in both states to complete her duties and she has no usual place of work". It is true that his Honour did not expressly refer to that assertion but it was plain that if it was put forward as contradictory of the worker's evidence, it would have to be rejected. In any event, it was an opinion rather than a factual statement.

12. Clearly, the worker was "required" to do paper work. She did most of it in NSW. That was adventitious. Had she continued to reside at Rivett ACT it would have been done there. The assertion that there was "no usual place" of work was not a matter for the HR manager to determine. His Honour was entitled to disregard Ms Callaghan's unsupported and unsupportable assertions in paragraph 16 of her affidavit.

13. It was, however, Mr Clyne's submission that the facts were that the worker "usually" worked in both NSW and the ACT. The time preponderance of ACT work was not relevant. Nor was the fact that the primary or essential work for the employer's business was in the ACT. Nor was it relevant, he submitted, that the employer did not direct where the book work was done. It was, in fact, at least partly done in the ACT but was, for the most part, done in NSW.

14. Thus, he contended the next enquiry should have been as to where the worker was "based". If that could not be ascertained, though it was submitted that it was at her home in NSW, then the relevant criterion was that of the employer's principal place of business which was, he submitted, also NSW.

15. Clearly, the worker could be said "usually" to have worked on behalf of the employer, both in the ACT and NSW. The former being an essential matter, the latter being adventitious.

16. The first question is whether only one State or Territory is to be ascertained rather than more than one. It seems to me from the explanatory statement and from the form of s 36B of the Act, that the intent is to identify one State or Territory as the "State or Territory of connection". That is also a theme of the Minister's presentation speech of 21 November 1996.

17. The next question is whether it is relevant that the worker is only required to perform duties in the ACT and, indeed, that the employer has no interest in, or even control over, the place where the "book work" component of her duties was performed.

18. Here the examples in the Explanatory Memorandum are not of assistance. In example A (attending conference interstate) the absence from ACT is said to be "required" but is temporary, and, hence, the interstate place is not to be regarded as a "usual" place of work. Example B (a courier driver) would have applied to the worker when her sales district was an area both in NSW and ACT. It assumes that the worker is directed to work both in NSW and the ACT. The worker's "base" must then be considered. In the example, workers reported to a Canberra office for instructions and to collect their vans. That it was said, was their "base". Hence the ACT would be the Territory of connection. There is no equivalent "base" in the current case.

19. Example C refers to information consultants flown to various sites from time to time. The workers are "routinely required" to work at different and interstate locations. Hence, they have no base, thus excluding s 36B(3)(b) of the Act. In the example, consideration would need to be given to s 36B(3)(c) of the Act.

20. It is noteworthy that the examples focus on the area or/areas within which the employer "requires" the worker to perform work.

21. That notion was picked up by the worker's submissions. Mr Sharwood noted that the "intentions" of the parties concerning the place or places of work was expressly referred to as a relevant matter in s 36B(6)(a)(iii) of the Act.

22. Mr Clynes referred me to a decision of Gray J in Michael Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 (8 February 2006).

23. In that case the worker was an interstate bus driver. The employer was based at the Jolimont Centre, Canberra City, ACT. The situation was similar to that envisaged by example B in the explanatory memorandum for the current legislation.

24. The learned Magistrate, in that case, had determined that the worker, who was injured in NSW, should be paid compensation according to the law of NSW. The employer's insurer had proposed to cease payments under the NSW scheme. The worker sought an ACT award. Section 7A of the Act governed whether the worker was, as it was then described, "a worker of this Territory". If he was so defined compensation was payable under the ACT scheme.

25. That definition had some similarity to s 36B of the present legislation. It stated:

(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.

26. The learned Magistrate, in the first instance, found that the worker usually carried out the work of the employment in NSW. The appellant worker contended that the fact that most of his travelling time was in NSW was not the determining factor. His base of operations was ACT so, he contended, s 7A(2)(b) of the Act should apply.

27. It was clearly a purpose of that provision, as his Honour's reference to the explanatory presentation speech for those provisions made clear, that the rights of ACT workers, particularly with respect to coverage for common law compensation rights should be preserved. It was also intended that the worker's "home" jurisdiction should be easily ascertained by the employer and by the insurer engaged by that employer. That was and remains necessary, of course, for purposes including the setting of premiums. It is a common purpose of that and these amendments that one "home" jurisdiction be ascertainable for each worker.

28. It is also apparent that it was intended that the "home" jurisdiction should not alter by reason of an adventitious circumstance such as place of injury.

29. His Honour considered in that context, though not directly applicable, the more recent amendments now in force pursuant to s 36B of the Act.

30. Only one jurisdiction had placed a figure on "usually". In South Australia (SA) it is legislatively defined as 10% or more of the worker's time spent working in the jurisdiction. Thus even if a worker spent only 11% of the time working in a particular State, the worker would be "usually employed" there.

31. His Honour analysed the meaning of the term "usually". He concluded that it could not be equated with "more often than not". Simply to quantify the respective times as a matter of regular practice could have been done but was not.

32. The test, as his Honour considered it to be, was expressed in the following passage:

[28] The provision is to be construed with the background that each Territory or State has a workers compensation regime. When a worker is customarily or routinely required to carry out his work in more than one Territory or State, it is a simple and logical circumstance to enquire as to the worker's base or if that does not provide the answer, then the Territory or State in which the worker was first employed.

33. The third alternative under s 7A(2) of the Act, as it then was, is, of course, no longer relevant. However, the first two were expressed in the same form as the current provision. His Honour rejected a test that would enquire as to the preponderance of working time spent in any particular jurisdiction. Nevertheless, in common with the explanatory statement in this case, reference was made to the worker being customarily or routinely "required" to work in more than one Territory or State.

34. There is a decision of Commissioner Herron in the District Court of Western Australia (WA), Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 (30 May 2008). The provisions being construed in that case were virtually identical to the provisions of the Act applicable to this matter. The worker in that case was employed on a ship. Hence, if the equivalent of s 36B(3) of the ACT Act, did not yield an answer, the State or Territory of registration of the ship would satisfy the connection test. The worker had boarded the ship on which he was injured in Victoria. The employer had a WA office and yard but its principal place of business was registered with ASIC as Victoria.

35. The Commissioner noted that, in the usual conduct of its business, the employers "required" the worker to perform his duties where and when directed. That would be on ships out of the State or at the WA premises of the employer. The worker would report for duty in WA. An analysis of the previous 12 months' employment history revealed that he worked 74.5% of his time on duty in WA, 20.9% in Victoria and was working out of Australia for 4.6% of his time.

36. The Commissioner accepted, and I consider correctly, that, although the WA equivalent of s 36B(6)(i) of the Act referred only to the previous 12 months employment history, all of that history was relevant, particularly if considering s 36B(6)(b) of the Act (temporary employment not more than 6 months in duration in a State or Territory).

37. Each engagement of the worker, the Commissioner found, was a separate arrangement in relation to a particular task. Thus no "usual" place could be identified simply from time spent in or out of WA.

38. The phrase "usually based" was then considered. The worker commenced and concluded each engagement in WA. However, there was no specific location which the worker routinely attended to receive instructions or to collect materials or equipment.

39. That, of course, contrasts with the worker's situation in Michael Hanns v Greyhound Pioneer Australia Ltd (supra). The Commissioner noted that the worker was not, therefore, "based" in WA "for the purposes of his employment". That was simply where he resided even though he might receive instructions at his residence by virtue of his presence there. However, because each contract started and finished in WA and he was paid from the premises of the employer in WA, he could be said to be "usually based" in WA, though the adventitious circumstance of his residence being there did not make it a "usual base".

40. It was not considered that the fact the registered principal place of business was Victoria was determinative of the principal place at which the employer actually conducted its business. There might, in the case of a nationally operating company, be no such place.

41. There was in the instant case, no evidence of what activities the employer performed at its registered office in Victoria. The business to which the worker was connected was that principally conducted in WA.

42. Hence WA was accepted as the State of connection.

43. I accept that the test for identifying where the worker "usually works" is not a merely mathematical exercise. Thus, if this worker had been employed to train, supervise and motivate a sales force not only in the ACT but also in NSW, as was the case up to 2006, there would be no argument that would support a conclusion that s 36B(3)(a) of the Act yielded a connection to the ACT, even if the work required to be done in NSW was only a minority of that work.

44. However, since that time, the employer has confined the area for the performance of the worker's duties to the ACT.

45. It is the case that the employer requires the worker to complete paperwork, though whether she did it from home, in her car or at some other place was a matter of indifference to the employer and at the worker's discretion. There was no evidence that the worker was required to do anything in NSW.

46. No doubt the worker could also have spent time at home planning her activities. That would be work-related but clearly not a relevant matter to determine where the worker usually worked, that is, engaged herself on the employer's business.

47. The employer, according to Ms Callaghan at paragraphs 8 and 9 of her affidavit, required the worker to:

... recruit, train and motivate sellers, run sales meetings, run promotions in shopping centres (although she did not always attend these) and make home visits and training calls.

48. That was clearly related to the marketing by the employer of its product. The worker could only perform those functions in the ACT. The paperwork and bookwork could be performed anywhere.

49. If the employer had required the book work to be done at its premises then it would know the State or Territory with which that work was connected and could make a decision to take out a policy of insurance accordingly. That decision would be rendered nugatory in the present case if the worker decided to change her work practices so as to complete paperwork as she travelled in the ACT rather than taking it home or had changed her place of residence without notice to the employer in the ACT. There could then have been no factual basis for concluding that the worker "usually worked" in NSW.

50. It seems to me, therefore, that his Honour was right to apply as the test for the place where the worker usually works in the course of her employment as that place or those places at which the worker was expressly or by necessary implication contracted to work. That is, required so to work by her contract of employment with the employer.

51. In this case it was correctly concluded that that place was the ACT.

52. If I had concluded that the usual place or places where the worker usually worked did not yield the ACT as the Territory or State of connection, I do not consider that s 36B(3)(b) would have yielded an answer.

53. I agree with Commissioner Herron as to the approach to the term "usually based". That is, to consider the answer, if any, yielded by (at [83] supra) a consideration of:

The work location specified in a contract of employment;
The location the worker routinely attends to receive directions or collect materials or equipment in relation to the works (sic);
The location the worker reports to in relation to the work;
The location from which the worker's wages are paid.

54. There was no evidence as to any of those matters, though it seems likely there was no place corresponding with the second and third dot points and none of them could have been equated with the worker's place of residence.

55. Assuming s 36B(3)(c) of the Act was applicable, the mere assertion that the employer corporation is situated at Brookvale NSW would not answer the question as to its "principal place of business", though it is likely that it would be NSW. More information would be necessary to detail the actual location of the business activities of the employer. As Commissioner Herron noted, a national employer might have no "principal" place of business.

56. Having concluded that his Honour was right to find that the ACT was the Territory or State of connection, it follows that the appeal will be dismissed with costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Respondent: Pamela Coward Higgins

Compensation Act 1951

At a glance

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Judgment (67 paragraphs)

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Legislation Cited (2)