Borg v WorkCover/EML

"(1) This Act applies to a worker's employment if (and only if) that employment is connected with this State.

(2) The fact that a worker is outside this State when a disability occurs does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.

(3) A worker's employment is connected with -

(a) the State in which the worker usually works in that employment; or

(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered.

(5) If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if -

(a) a worker is in this State when the disability occurs; and

(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(6) In deciding whether a worker usually works in a State -

(a) regard must be had to the worker's work history with the employer over the preceding 12 months and the intentions of the worker and employer; but

(b) regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

(7) Subject to subsection (6), in determining whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not under the statutory workers compensation scheme of that State the person is regarded as a worker or as working or employed in that State.

(8) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker's employment.

(9) In this section -

'ship' means any kind of vessel used in navigation by water, however propelled or moved, and includes -

(a) a barge, lighter, or other floating vessel; and

(b) an air-cushion vehicle, or other similar craft,

used wholly or primarily in navigation by water;

'State' includes a Territory and, in a geographical sense, a State's or Territory's relevant adjacent area as described in Schedule 4."

8

Section 6A(1) of the Act then provides that if the question of an employee's connection with SA arises in proceedings before this Tribunal, the Tribunal must determine the State with which the employment is connected in accordance with s 6.

9

Accordingly the issue that arises in respect of each claim is to ascertain which State their employment was connected with at 30 December 2007.

10

Mr Borg was an experienced interstate driver of B-double trucks before commencing with Les Transport. He was engaged in October 2007 by Dale James, the operations manager for Les Transport. Mr Borg obtained the employment by turning up at a compound used by the employer in Kewdale, WA. After an interview and a verbal agreement Mr Borg commenced employment on 19 October. His job was to drive B-double trailers between Perth and Sydney on a full-time basis.

11

When Mr Borg was hired no requirement was made by the employer as to where Mr Borg should live. When Mr Borg said that he then lived in Paringa, SA, he was told it was 'ok' for him to leave the truck at Paringa during rest breaks from work. Mr Borg said it made no difference to the employer whether he stayed in Perth, Paringa or Sydney on his breaks.

12

85% of Mr Borg's work was involved in driving directly between Perth and Sydney without diversions. On other occasions he would also travel to Melbourne or Brisbane. On his regular east/west crossings of Australia he always went through Renmark, near Paringa.

13

Mr Borg did not have to report to any particular site to commence work, as he usually drove the same truck and had his rest breaks either in the truck or in his home at Paringa or at his daughter's home in Sydney.

14

Mr Borg was paid electronically out of the employer's office. He did not have to attend any particular place to receive his wages.

15

Directions and instruction were given by mobile phone and radio.

16

The evidence as to Mr Borg's circumstances was not disputed and accordingly I adopt the above circumstances as relevant findings of fact.

17

Mr Squire commenced employment with Doherty Transport in about 1998. The head office and depot of the company were based at Fairy Meadow near Wollongong in NSW.

18

Mr Squire worked on a full-time basis driving trucks between Sydney and Perth with some trips via Adelaide and Melbourne.

19

Instructions and directions were received by Mr Squire from either Mr Doherty, a principal of the business, or by its operations manager via mobile telephone from their base in NSW. Doherty also had an employee or agent in WA, who provided directions to Mr Squire with respect to picking up and dropping off loads in Perth. The company also had a loading agent in Adelaide who would at times give direction in respect to deliveries or pickups in Adelaide. Mr Squire would occasionally take his wages to him from Fairy Meadow.

20

Mr Squire's wages were paid electronically out of the employer's head office. He also did not have to attend any particular place to receive them.

21

Mr Squire also remained with his allocated truck at most times. He also would sleep in the truck or have it parked (ie the prime mover without trailers) nearby during rest periods. He would sometimes take rest breaks in basic accommodation provided at the Fairy Meadow yard. When in Perth he would sometimes travel to Kalgoorlie and stay with friends there.

22

Mr Squire said that in nine out of ten trips through Adelaide he left again on the same day as he arrived. There was initially some uncertainty in Mr Squire's evidence as to his living arrangements in December 2007. In a witness statement prepared in 2009 Mr Squire stated that he had separated from his wife in about August/September 2007 and had moved out of the family home at Salisbury North. He said that when in Adelaide after then he would stay at a daughter's home and that he only had some spare parts and tools remaining at the Salisbury North house. In a later statement he made the assertion that he had moved back to the family home by the time of the incident and did not make a final separation until much later. However when Mr Squire gave oral evidence he was able to clarify that at the time of the incident he was living in Kalgoorlie. He had well and truly moved out of the Salisbury North home by then, and had placed many of his possessions and his furniture in storage. He still had a connection to the family home through some possessions and the fact that his youngest daughter still lived there.

23

Two written statements were prepared for Mr Squire's former wife, Leonie Squire. These were also inconsistent as to Mr Squire's living arrangements in December 2007. This was clarified by Ms Squire's oral evidence to the effect that at the time of the incident Mr Squire had been gone since about September 2007. Ms Squire believed that he was then living in Kalgoorlie. She confirmed that he did return to the Salisbury North premises but not until about July 2008 when he suffered a hernia injury and Ms Squire was able to provide care for him.

24

Samantha Squire, the daughter of Robert and Leonie also had a written statement prepared on her behalf. That written statement contained clear assertions that Mr Squire was living at the Salisbury North house in December 2007. Yet when Samantha was called upon to give oral evidence she had no recollection as to where her father was living at that time and no recollection as to the dates of her parents' separations. The written statement was thereby proven to be unreliable.

25

The conclusion I have reached from the evidence as to Mr Squire's living arrangements in December 2007 is that Mr Squire did not then have a residence, home, base or personal living space in SA, but he did in Kalgoorlie.

26

There is no evidence of any requirement by Mr Squire's employer for him to be located, housed, based or living in any particular place.

27

Mr Squire had previously suffered one or more work related disabilities in the employ of Doherty. Mr Squire had lodged at least one previous claim for compensation in NSW and had it accepted by the relevant NSW insurer, Allianz.

28

The issue for determination is which State each applicant's employment was connected with on 30 December 2007.

29

The first question to be answered under s 6(3) is whether either worker "usually works" in their employment in SA. In answering this, regard must be had to the worker's history over the preceding twelve months and the intentions of the worker and employer[1].

30

The evidence in relation to both applicants was very similar. Both were employed specifically as interstate truck drivers primarily on the Perth to Sydney route, but with some variation. The evidence does not identify any particular State in which a greater amount of working time was spent as compared with other States. Even then it would not necessarily follow that the State in which more work was performed than in others, would satisfy the "usually works" test.

31

When this work is considered in the context of Australia's geography, I conclude that each applicant spent roughly one third of their working time in WA, one third in SA, and one third in the combined eastern States. The evidence is insufficient to support a finding that either applicant usually worked in SA or in any other state.

32

The next, and only seriously contentious question, was whether either or both applicants were "usually based for the purposes" of their employment in SA, or in any other State.

33

WorkCover's counsel submitted that when considering that issue I have regard to the relevant Minister's second reading explanation speech to Parliament in support of the Bill,[2] to ascertain the purpose to be served by the amendment. I agree it is appropriate to do so, although the considerations specified in the explanation are not binding or exclusive.[3]

34

The relevant explanation for what is described as the 'second test' is as follows:

"Where a worker works comparable periods of time across a number of States, the worker's employment is connected to the State in which they are 'usually based' for their employment contract. The following factors should be taken into account in determining where a worker is usually based;

• the work location specified in the worker's contract of employment,

• the location the worker regularly attends to receive directions or collect materials, equipment or instructions for work,

• the place where the worker reports for work,

• the place where the worker's wages are paid."[4]

35

Counsel agreed that the focus of the new test is upon a worker's usual base, but specifically for the purpose of employment. Accordingly the question of the location of a worker's home base or residence is not relevant, unless it is in a particular location for the purposes of employment.

36

In Mr Squire's case, at the time of the incident he was living in WA while his employer's place of business was in NSW. Mr Borg was resident in SA but his employer was based in WA.

37

Neither applicant was required by their respective employer to live in any particular place. Their employment was not conditional or dependent in any way on the place each lived at or called their home when they were not working. There was no requirement associated with their employment, whether explicit or implicit, that they should be located, housed, based or be living in any particular State. Each applicant's circumstances were such that they could have been located, housed, based or lived equally in WA, SA or NSW, within a reasonable distance of their usual or expected east/west driving routes.

38

Neither applicant regularly attended any particular location to receive directions or instructions. Each could be contacted by telephone or radio anywhere. They could be in contact with loading agents in different cities for delivery or pick up. Neither was required to report for work at any particular place. Each remained with their allocated truck most of the time. Neither was required to attend at any place to be paid their wages.

39

The fact that Mr Borg kept spare parts and some tools at his home at Paringa, and that Mr Squire kept some spare parts and tools at Salisbury North, are irrelevant considerations. That is because neither was required by their employer to keep any tools or spare parts at any particular place, and that all necessary tools and equipment were carried in their respective trucks.

40

WorkCover's counsel submitted that I should take into account, when determining Mr Squire's claim, the fact that at least one previous administrative or commercial process that took place in NSW resulting in the acceptance of at least one claim for workers compensation under NSW law, was a relevant fact that I should take into account when applying the "usually based for the purposes of employment" test.

41

I reject that submission as any such consideration is irrelevant. The Tribunal is not exercising a discretion, but instead is engaged in a process of applying a statutory test to relevant evidence. The stance of an administrative or commercial institution with respect to one or more of Mr Squire's previous claims of entitlement at law over unrelated incidents, cannot be probative of this issue. It does not shed any light on the question of the location of Mr Squire's living arrangements for the purposes of his employment.

42

Based upon the whole of the relevant evidence I find that neither Mr Borg nor Mr Squire were usually based for the purposes of their employment in South Australia, and further that neither was usually based for the purposes of their employment in any other State.

43

The next consideration is the State of each applicants' employer's principal place of business[5]. ASIC searches were consistent with the applicants' evidence to the effect that Les Transport (WA) Pty Ltd had its principal place of business in Coogee, WA, and that AE, KF & CP Doherty had its principal place of business in Fairy Meadow, NSW. I accept this evidence.

44

It follows that on 30 December 2007 Mr Borg's employment was not connected with SA, but was instead connected with the State of WA.

45

It also follows that on 30 December 2007 Mr Squire's employment was not connected with SA, and was instead connected with the State of NSW.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Subsection 6 (6), and see also (7)

[3] Owen v South Australia [1996] SASC 5574; [1996] 66 SASR 251

[5] S 6 (3)(c)