Covill v WorkCover Queensland [2022] QSC 171

• [1] The 25-year-old applicant is a chef by trade. She was employed by Atlas People Pty Ltd.
• [2] Atlas employs chefs and places them with Atlas' clients in short and long-term roles in the hospitality industry. It promotes itself to people like the applicant as providing assignments in different parts of Australia.
• [3] This attracted the applicant because she would have the benefit of visiting different parts of Australia at the same time as she was earning an income.
• [4] Her first assignment was at a hotel at Batemans Bay in New South Wales. This was followed by an assignment to work at Daly Waters in the Northern Territory, which started in late August 2019. After that assignment ended the applicant planned to move to the next assignment for Atlas, which may have been in any Australian State.
• [5] On 17 December 2019, the applicant sustained an injury in the course of her employment with Atlas while working at Daly Waters.
• [6] On 8 January 2020, WorkCover Queensland accepted her application for compensation arising out of the incident. Later, she received a notice of assessment in relation to her injuries with an offer of lump sum compensation. She elected not to accept it and to pursue common law claims. In July 2021, she signed a notice of claim for damages. WorkCover refused to respond to her claim, contending that she is not entitled to access compensation by way of damages under the Workers' Compensation and Rehabilitation Act 2003 (Qld).

• [7] The issue is whether the applicant's employment was connected with Queensland, as determined in accordance with s 113 of the Act. Under s 113, the fact that a worker is outside Queensland when the injury is sustained does not prevent compensation being payable under the Act in relation to employment that is "connected with" Queensland.[1] The connection with Queensland is determined by the cascading provisions of s 113(3). It provides:

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

(b) if no State or no 1 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 1 State is identified in paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located."

• [8] The connection issue requires examination of the worker's employment, not the precise contract of employment that the worker may have been working under at the time of injury. Were it otherwise, a casual employee working under a short-term contract in another State, say, a contract to work for a day in New South Wales, would have his or her employment defined by that contract, despite having usually worked under similar daily contracts in Queensland.
• [9] Because a worker's employment is not assessed by reference simply to the employment contract he or she was working under on the day of the injury, successive contracts of employment, if any, under which a worker was employed will be relevant to an assessment of the relevant employment and the application of s 113(3).
• [10] As explained in Ferguson v WorkCover Queensland:[2]

"There may be no State, or no one State, in which the worker usually works. In such an event the connection is determined by inquiring about "the State in which the worker is usually based for the purposes of that employment" and if that inquiry does not yield an answer then the next test is to ask "the State in which the employer's principal place of business in Australia is located.""

• [11] The statute requires an inquiry into the worker's employment. Therefore, I turn to the relationship between the applicant and Atlas, including a shared expectation, if she did well, that it would be an ongoing relationship constituted by separate contracts of casual employment in different parts of Australia.

• [12] Before her employment with Atlas, the applicant had worked as a chef in a variety of roles, mostly in South East Queensland.
• [13] She was acquainted with Atlas, which employs chefs and places them with clients in short and long-term roles. As noted, Atlas promoted itself to the applicant and others as providing assignments in different parts of Australia. For example, the applicant received an email headed "Atlas People wants YOU!" which stated:

"Calling all talented, energetic, passionate and inspirational Chefs. If it's time to make a change and see the wide open landscapes, experience the awesome country hospitality and be challenged and motivated in new and exciting locations then jump at this chance..."

• [14] The email listed various temporary assignments at locations in different regions of Queensland and New South Wales, regional Victoria, the Victorian ski fields and Northern Western Australia. Some of the positions were advertised to be for six to eight weeks, some for three to four months and some for a season. The email advised that all accommodation, meals on shift and transport would be provided.
• [15] Atlas contacted the applicant from time to time by phone or email with offers of work in a number of States.
• [16] In July 2019, the applicant contacted Atlas and spoke to one of its representatives. She told the representative that she wanted to work for Atlas and explained her training and experience. In response she was told words to the effect: "That is awesome. We have contracts everywhere, are you happy to go interstate?". The applicant responded that she was "happy to do everything and go anywhere". She was told that Atlas had quite a few contracts available, and the representative mentioned different venues in different locations and States. Based on the applicant's experience, an assignment in Batemans Bay, New South Wales, was suggested.
• [17] The applicant was told that Atlas could not guarantee a subsequent assignment after that one ended, but that if she did well then there would likely be another contract. She was told that Atlas had more contracts than they could fill, and this gave her the expectation that so long as she did well, she could continue working for Atlas on different assignments in different locations around Australia on an ongoing basis.
• [18] As noted, employment with Atlas was attractive to the applicant at the time because she would have the benefit of visiting different parts of Australia while earning an income.
• [19] Atlas' website, which the applicant read, stated that the majority of its work was with repeat clients and that an applicant could be confident that Atlas would "find you a job". It stated:

We provide roles right across Australia & New Zealand...but fear not, as we can place you in a temporary role...for you to 'try before you buy'. It's a great way to experience a new location, team and kitchen, without relocating completely (...but if you want to, we can help with that too!)"

"We're committed to building long-term, positive working relationships with our candidates..."

"We practice (sic) open and regular communication with clients and candidates alike, which facilitates positive, long-term working relationships."

• [22] The applicant's first assignment with Atlas was in Batemans Bay, New South Wales. While working for it on that assignment she was offered a further assignment at Daly Waters in the Northern Territory. She was told that the length of the assignment, as envisaged at the time, was four to eight weeks. The conditions of assignment provided that the employment was to be on a casual basis at $27 per hour, paid weekly, with a commencement date of 26 August 2019. Associated emails drew the applicant's attention to clauses in the "Conditions of Assignment" document about restraint on employment and transportation costs, and dealt with transport and accommodation arrangements that were to be made by Atlas.
• [23] Atlas arranged for the applicant to travel from Batemans Bay to Daly Waters and she commenced work onsite on or about 26 August 2019.
• [24] During her Daly Waters assignment, the applicant remained in contact with Atlas and was advised that the length of her assignment had been extended, to which she agreed. She received payslips from Atlas, which is based in Brisbane.
• [25] The applicant had arranged leave over Christmas to enable her to travel back to Queensland and there were discussions between Atlas and the applicant about returning to Daly Waters to complete a further extension.
• [26] On 17 December 2019, the applicant was injured while working as a chef on her assignment.
• [27] The evidence about the expected duration of the Daly Waters assignment suggests that, had it not been for her injuries, her assignment at Daly Waters would have ended in early 2020, after which she would have moved onto the next assignment for Atlas, which may have been in any Australian State.
• [28] Before she was injured, her priority was to continue to work as a chef at various venues in different locations as she "loved that lifestyle and the adventure".
• [29] Despite her injuries, Atlas sent emails to the applicant advertising various employment roles available all over Australia and inviting her to apply for them.

• [30] Section 113(1) of the Act provides that compensation under the Act is only payable "in relation to employment that is connected with this State." Section 113(2) provides that the fact that a worker is outside Queensland when the injury is sustained does not prevent compensation being payable under the Act in relation to employment that is connected with Queensland.
• [31] Section 113(3) is quoted above. The meaning of "usually works" in s 113(3)(a) was discussed in Ferguson.[3] 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.[4]
• [32] There may be no State in which the worker "usually works". As was observed in Ferguson:[5]

"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.[6] 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.[7] 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.[8]
• [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.

• [38] The respondent submits that the "employment" for the purposes of s 113(3)(a) was the "discrete independent employment" comprised by the Daly Waters assignment in the Northern Territory, during which the applicant worked only in the Northern Territory. The respondent relies upon the "Conditions of Assignment" document, particularly clause 4 of it which stated that Atlas was under "no obligation to offer [the applicant] further assignments".
• [39] The applicant contends that the Daly Waters assignment should not be considered in isolation because s 113 is cast in terms broader than the employment contract. Section 113(3)(a) looks at where the person usually works in that employment. The applicant submits that, conceptually, there is a difference between a contract of employment and the employment relationship.[10]

• [40] The contract under which the worker was employed at the time of injury obviously is relevant in determining the relevant "employment". So too may be earlier contracts between the worker and the employer as part of their work history. Anticipated future contracts also may be relevant. The work history, along with the possibility of an ongoing employment relationship, is relevant in determining the relevant employment. Depending upon the circumstances, there may have been many individual contracts involving work in different States, making it wrong to view the current contract of employment in isolation in determining whether there is a State in which the worker "usually works in that employment".
• [41] The legislation is apt to apply to a case in which there may be a one-day contract or many one-day contracts under which a casual worker is employed. An undue focus upon the contract that applied on the day of injury would make the determination of whether the employment is connected with a State depend on the happenstance of where the injured worker was working on one particular day, not the places she had worked for that employer in the course of an employment relationship constituted by a number of contracts of casual employment.

• [42] The respondent places particular reliance upon the terms of the conditions of assignment for each job. They are submitted to be "the antithesis of an ongoing relationship for employment with any mutual intention or expectation for further work". I accept that the conditions of assignment for the Daly Waters assignment, like the conditions of assignment for the Batemans Bay assignment, are relevant in determining contractual terms and therefore the relevant employment. They, together with pre-contractual negotiations, oral terms and implied terms go towards defining the contractual terms that governed the Daly Waters assignment. To focus, however, on the "Conditions of Assignment" document that was given to the applicant after she agreed to work at a place on a certain assignment is to ignore the prior dealings that are part of the employment relationship.
• [43] The relationship was one in which she was told that while Atlas could not guarantee a subsequent assignment, if she did well on that assignment she would likely be offered another one. It was a relationship under which Atlas was under no obligation to offer her further assignments (a matter confirmed by clause 4 of the conditions of assignment). Still, she had a reasonable expectation of being offered further work if she did well and Atlas continued to have places to offer her in different parts of Australia.
• [44] The "Conditions of Assignment" document included 30 clauses. It is unnecessary to mention many of them. The respondent places particular reliance upon the clause which states:

"4. Capacity. My employment with Atlas People is as a casual worker (or some other capacity as may be agreed upon in writing). I will be employed for a temporary period of time, with each assignment having a period of employment. On completion or the termination of my assignment, Atlas People is under no obligation to offer me further assignments."

• [45] Clause 5 advised that Atlas did not control the length of an assignment, it may indicate the potential length of an assignment, but the client may vary the length of an assignment period or terminate an assignment at its discretion.
• [46] Clause 6 was headed "Permanency" and stated:

"Should my assignment exceed 6 months, Atlas People may consult with the client and me to discuss the option of being converted to permanent employment. In all cases, this will involve the loss of any casual employee loading. Permanency is at the client's sole discretion."

• [47] Clause 17 required Atlas' employee to give it five working days' notice of terminating the assignment.
• [48] Clause 18 imposed a restraint by which the worker agreed that during the contracted period or any time within 12 months after the conclusion of the agreement, the worker would not accept "any other offer of employment directly from any client, or agency representing a client, to whom I have been introduced without first notifying Atlas People in writing." If the worker did not advise Atlas, they agreed to pay a placement fee of $7,500 plus GST to cover certain costs. The restraint was not confined to offers of employment with the client who was the subject of the current assignment and applied to any client of Atlas to whom the worker had been introduced.
• [49] Clause 19 related to workers' compensation, with Atlas saying that it would ensure that the person was covered under statutory workers' compensation insurance.
• [50] Finally, clause 30 was in these terms:

"30. Instructions. Your instructions for this role will come to you exclusively from Brisbane, Queensland & you will be payrolled from the Atlas People Principal Place of Business."

• [51] Overall, the conditions of assignment for the Daly Waters assignment, like the conditions of assignment for the earlier Batemans Bay assignment, confirm that while the employee was under the care, control and supervision of Atlas' client during the period of the assignment, the worker was employed by Atlas.
• [52] Clause 4, upon which the respondent places great reliance, serves to confirm that her employment was as a casual employee, with each assignment having a period of employment. The possibility existed of converting to permanent employment. However, the employment was as a casual, with all of the advantages and disadvantages that go with that status. The final sentence in clause 4 simply confirms what the applicant had been told, namely that Atlas was under no obligation to offer her future assignments.
• [53] The conditions of assignment, things said and done by the parties in relation to that assignment, their previous dealings and expectations of an ongoing relationship, are all part of the employment matrix. Atlas gave no guarantee that it would offer the applicant further assignments. She gave no guarantee that she would accept further assignments. However, there was an expectation and a probability that a further assignment would be offered and accepted if the previous assignment proved satisfactory.

• [54] The applicant's status as a casual employee, to whom there is no obligation owed by her employer to offer further work, places her in the company of other casual workers to whom s 113 of the Act applies.
• [55] Section 113 falls to be applied to casual employees who may work as a cleaner, on a checkout in a supermarket, as a builder's labourer, a paralegal or a supply teacher. Such a worker's employment may be sporadic whereby they work on and off when there is work to be done. A contractual analysis may be that they work under a number of discrete contracts rather than under one contract which contains no guarantee of the hours to be worked during a period. Such an employee, who works from time to time for the same employer on a casual basis, may be in an ongoing employment relationship. The cleaner or the shopworker may be someone who expects to work, but is not promised, a certain number of hours each week. Or it may be more sporadic employment which is offered only when there is work to be done because of increased demand at the workplace or because another employer is absent. As matters transpire, a builder's labourer who is employed on a casual basis by a labour-hire firm may end up working on one site under the supervision of a construction company for weeks on end, or possibly only for a few days. Irrespective of whether the worker is employed two or ten days each fortnight and irrespective of whether there is a separate contract each day the worker agrees to go to the site, there is an employment relationship.
• [56] These employment relationships are familiar and in most cases the worker usually works in that employment only in one State. Section 113 arises in situations in which the worker works in more than one State. In a case like Ferguson, it arises in connection with permanent, routine work on both sides of a border. Section 113 also falls to be applied in relation to sporadic, casual work. In the builder's labourer example, it is possible to imagine such a worker being offered casual work when there is a surge in demand and being employed under a series of daily contracts. The worker may live on the Gold Coast and be based there for the purposes of his employment, but work some days just over the border in Northern New South Wales. If, for example, the builder's labourer was called in to do one day's work at Tweed Heads during which he was injured, the s 113 issue would not be determined solely by the contract of employment that applied only on the day of the injury or the place of the injury. The first inquiry under s 113 would be whether Queensland was the State in which the worker usually worked in that employment.

• [59] Little is to be gained by a lengthy analysis of the facts of other cases including Ferguson. The issue is the employment relationship in the case at hand.
• [60] Other cases are illustrative of the principles that are established by the authorities. Goldman v Ribshire Pty Ltd[11] is an example of a single contract to work on one project in Western Australia. There was no understanding that the plaintiff would obtain work in another State with the same employer once future projects were ready.[12] Unlike the case of Tamboritha, there was no ongoing relationship between the employer and employee.[13]
• [61] In Tamboritha, there was an ongoing relationship. The defendant worked on "a job by job basis".[14] If he accepted an offer to work on a vessel, he would work wherever the work was required to be undertaken. He could choose to accept or decline an offer of work.[15] Each period of work constituted a separate period of employment.[16]
• [62] At the time of the defendant's injury in Victoria, there was no guarantee of further work and he was able to make "the arbitrary decision"[17] whether to accept or reject an offer of work. There was no intention on the part of the parties that the defendant usually work in any one particular State or location.[18]
• [63] There was an ongoing employment relationship, despite periods between jobs when there was no employment contract between the parties. There was such an employment relationship, despite the absence of any guarantees that further jobs would be offered and accepted.
• [64] The Court could not determine that the defendant usually worked in his employment with the plaintiff in one State.[19]

• [65] In this case, one is not concerned with an employment relationship involving a pattern of work in which the worker is based in one State and works, on occasions, in a neighbouring State. Instead, one is concerned with an employment relationship that involved offers by an employer of work in many different States. Atlas promoted itself to the applicant on the basis it had work in many States. The applicant wanted to have a relationship with Atlas so that she would have the benefit of visiting different parts of Australia while earning an income. She was told that Atlas had contracts everywhere and asked whether she was happy to go interstate. She said that she was happy to do everything and go anywhere.
• [66] Atlas expressed its commitment to building "long-term working relationships" with people like the applicant.
• [67] Whilst she was told that Atlas could not guarantee a subsequent assignment, if she did well there would likely be another contract.
• [68] The applicant was employed by Atlas and worked for it in New South Wales. She then was employed by Atlas and worked for it in the Northern Territory. Although her assignment in the Northern Territory was extended, it probably would have come to an end shortly after the injury either because the work ran out or because the applicant wanted to move on.
• [69] There is no evidence of a specific intent on the part of Atlas as to the duration of the Daly Waters assignment and what work the applicant would be offered by it after that assignment. Therefore, there is no evidence of a mutual intent by the worker and the employer to enter into a further specific employment contract. There is, however, evidence of a preparedness by Atlas to offer another assignment if the previous one went well. The applicant was told that if she "did well there would likely be another contract although this could not be guaranteed". There is no evidence that the applicant did not do well before she was injured. Therefore, there is a reasonable likelihood that had she not been injured she would have been offered and would have accepted other assignments in other parts of Australia. She did in fact receive communications from Atlas after her injury advertising various employment roles available all over Australia and inviting her to apply for them.
• [70] Prior to the applicant's injury, both she and Atlas had an interest in an ongoing relationship whereby the applicant would be offered, and she would accept, employment on a casual basis through assignments by Atlas.

Was the applicant "usually based" in Queensland?

• [75] The applicant advances arguments as to why for the purposes of her employment the applicant was based in Queensland. As discussed in Ferguson, where a worker is usually based may coincide with the place where the worker usually works but that may not necessarily be so. The applicant points to the fact that the contract was entered into in Queensland. The conditions of assignment confirmed the laws of Queensland applied to the agreement. She was paid from Atlas' premises in Queensland, kept in contact with Atlas by telephone and email from Queensland and, perhaps most importantly, instructions for her role were given to her from Brisbane.
• [76] I conclude, however, that for the purposes of her employment the applicant was not "usually based" in any one State. This flows from the findings that I have already made concerning the nature of her employment. I am not satisfied that she was "usually based" only in the Northern Territory. This may have been her work location during one contract of employment. Before that she worked in New South Wales. The nature of her work involved her moving on assignment, from one place to another. She was not usually based in any one State.

• [77] Because the applicant was not usually based for the purposes of her employment in one State, s 113(3)(c) provides that her employment is connected with the State in which Atlas' principal place of business in Australia is located. It is accepted that this is Queensland.

• [78] By application of s 113(3)(c) the applicant's employment is connected with Queensland.
• [79] I will make a declaration substantially in the form of the declaration sought by the applicant and make such other orders as are agreed by the parties concerning consequential matters, including costs.
• [80] Subject to any submissions as to the form of orders, I propose to declare that the applicant's employment with Atlas People Pty Ltd as described in the applicant's notice of claim for damages dated 27 July 2021 is "connected with" Queensland as defined in s 113 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

[1] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 113(2).

[2] [2013] QSC 78 at [22] ("Ferguson").

[5] At [34], cited in Thomas v CGU [2020] TASSC 38 at [22].

[6] Tamboritha Consultants Pty Ltd v Knight (2008) 58 SR (WA) 291 at 306 [61]; [2008] WADC 78 at [61] ("Tamboritha").

[7] See the comparable ACT legislation considered in IC Formwork Services Pty Ltd v Moir (No 2) [2020] ACTCA 44; (2020) 15 ACTLR 207 at 211 [3]; [2020] ACTCA 44 at [3].

[10] Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867; (2020) 296 IR 425, 438 [61]-[63]; [2020] FCA 867 at [61]- [63].

[11] [2015] WADC 155.