SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 1

The appeal is allowed and the finding of the Magistrate that NSW is the State where the appellant usually worked in his employment with the respondent is set aside.

The matter is remitted to the Industrial Court for further determination in accordance with these reasons.

WORKERS' COMPENSATION - Workers' Compensation Generally - Injury - employment connection test - whether worker's employment is connected with the Australian Capital Territory or New South Wales - whether a single Territory or State can be identified as where the worker is usually based for the purpose of their employment - no single Territory or State can be identified as place where the worker was usually based for the purpose of his employment.

APPEAL - Appeals From and Control Over Magistrates - appeal from the Industrial Court - whether Magistrate made an error in finding that the worker was usually based on New South Wales for the purpose of their employment - appeal upheld - matter remitted to the Industrial Court for further determination.

Workers Compensation Act 1951 (ACT) Part 4.2A

Avon Products Pty ltd v Falls [2010] ACTCA 21

Ferguson v WorkCover Queensland [2013] QSC 78

Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; (2006) 196 FLR 361

Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83; (2010) 8 DDCR 535

Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78

Case Title: Michael Fisher v Tony Innaimo Transport Pty Ltd

1. This is an appeal from a decision of a magistrate sitting as the Industrial Court exercising jurisdiction under the Workers Compensation Act 1951 (ACT) (the Act). On 19 February 2014 the Magistrate determined that the appellant worker's "Territory or State of connection" for the purposes of worker's compensation is New South Wales (NSW). The worker disputes this finding, and asserts that his "Territory or State of connection" is the Australian Capital Territory (ACT). The question assumes some significance for the appellant, as his workers compensation entitlements in NSW are less generous than those he may receive in the ACT.

2. The proceedings in the Industrial Court were commenced by the respondent employer seeking a determination that the appellant's Territory or State of connection in relation to his employment with the respondent for the purposes of Part 4.2A of the Act is not the ACT but is, in fact, NSW. The appellant filed an Answer claiming that he suffered injury "arising out of the course of his employment" with the respondent "over the period from 1 July 2011 to 1 June 2012", and that his Territory or State of connection for the purposes of Part 4.2A of the Act is the ACT. The appellant claimed that he suffered a distinct injury on 14 December 2011 in his employment with the respondent, however his claim for compensation, as revealed by his Answer, is not restricted to a claim arising out of this distinct injury, but claims entitlement to compensation "by reason of injury arising out of the course of his employment over the period from 1 July 2011 to 1 June 2012" .

3. The appellant gave evidence before the Magistrate. Michael John Hogan, the business manager of the respondent, and Phillip Richmond Randall, the operations manager of the respondent, also gave evidence.

4. The appellant testified that he commenced work with the respondent as a truck driver in 2011, after being interviewed for the position at the respondent's depot at Hume in the ACT. He said that his supervisor "Phil" was based at the Hume depot. He testified that there was an initial arrangement such that he took a work truck home to his residence in Bowning NSW each night, before leaving from his home in the truck the next morning to work as directed by the respondent. He said that this arrangement continued at least until the time that he suffered his injury on 14 December 2011. He stated that he would travel from Bowning to Hume each morning, but sometimes he would stop at the respondent's depot at Yass to collect some material to take back to Hume. He said that he received his instructions each day from Phil either by telephone from the Hume depot, or in person at Hume. He denied that he worked out of the Yass depot.

5. The appellant testified that after one of the other drivers, Jason, had an alcohol-related incident with one of the respondent's vehicles, none of the respondent's employees were allowed to take the respondent's vehicles home, and the appellant started leaving the truck at the Yass depot. He stated that he attended the Hume depot daily and provided the respondent with details of his daily start and finish times at that depot. He testified that there were no staff at Yass to deal with pay issues.

6. In cross-examination the appellant denied that Jason had lost his licence before the appellant commenced work with the respondent. He rejected the suggestion that he had been allowed to take the truck home for a period because he did not, at that time, own a car. The appellant agreed that after he purchased a car he would park the respondent's truck at the Yass depot and then drive his car to Bowning. He would drive to the Yass depot in the morning and collect a truck. His working day commenced when he collected the truck each morning, although there were occasions when he took the truck home because he had to undertake deliveries in the area of his home.

7. The appellant agreed that he would ordinarily commence work at 6 am from the yard at Yass, although sometimes he would have to start at 5 am. In the initial part of his employment, when he was taking the truck home, he would be required to start earlier to allow for the truck to be loaded at the Yass yard. Once he started driving his own car to the Yass yard, the truck would often be loaded or partially loaded by the time he arrived. He said that on occasions he would drive from Yass to the Hume depot to load further material before he commenced his deliveries.

8. The appellant rejected the proposition that there was an area at the Yass depot where he could leave his paperwork at the end of the day. He said that the paperwork stayed in his truck until he delivered it to the Hume depot. He denied that at the time he was first employed by the respondent he was told that the job was as a driver based at Yass.

9. Michael Hogan gave evidence that he is the business manager of the respondent, a position that he has held since July 2011. He was responsible for the management of the business of the respondent, including overseeing staff, business development and other aspects of administration. He was based at the Hume depot, where the respondent has a warehouse and offices. The respondent has other sites including the site at Yass. Mr Hogan testified that the Yass site receives freight from interstate, which is then transported to the Hume depot and distributed from there, or is distributed to areas of regional NSW directly from the Yass depot. He said that he was the person who employed the appellant, and that he was employed to work as a truck driver out of the Yass depot.

10. Mr Hogan said that when the appellant commenced employment with the respondent, the appellant had no personal transport except for an unregistered motorcycle. He said that he allowed the appellant to drive the respondent's truck home each evening for a limited period to assist the appellant. After a time, however, other employees complained that the appellant was given special treatment, and this arrangement ceased. Mr Hogan was unsure how long this arrangement continued, but thought that it might have been a couple of months.

11. Mr Hogan testified that the appellant would collect his truck each morning from the Yass depot together with consignment notes for the freight on the truck. At the end of the day he would put his paperwork in a tray at the Yass depot, and from there it would be sent to Hume. He said that the consignment notes were sent from Yass to Hume in one envelope each day, to avoid them getting lost in individual trucks.

12. Mr Hogan said that after the appellant's injury on 14 December 2011 he was involved in a return to work program. That involved him working at the Hume depot daily, as there was no appropriate work for him to perform at Yass. Mr Hogan said that the appellant complained about having to travel to Hume each day in his own car in order to work, saying that he was employed at Yass and wanted to work there.

13. He disagreed with the proposition that the appellant had only started collecting the truck at Yass each morning and returning it there each night after Jason had lost his licence. He said that the appellant went to the Yass depot every day to move the freight which was delivered there. He said that those employed at the Yass depot could fax their timesheets to the Hume depot for processing if they were not coming to the Hume depot.

14. In cross-examination, Mr Hogan said that the appellant received his directions from Phil Randall, who was based at Hume. He rejected the proposition that from time to time the appellant would be directed by Phil Randall to come straight to Hume, saying that was very unlikely as there would be no profit in it for the respondent. Mr Hogan accepted that on occasions, if the appellant happened to be at Hume the day before payday, he would deliver his pay sheets to Hume, otherwise they would be faxed from Yass to Hume. Mr Hogan did not accept the proposition that the appellant went to Hume every day, saying that this occurred only about 50 per cent of the time. He rejected the proposition that the appellant was employed to go to Hume every day because that was the respondent's base, and also rejected the proposition that the appellant was not employed to work at Yass.

15. Philip Randall gave evidence that he is the operations manager for the respondent, having held that position at all material times since July 2011. He said that his role was to manage the distribution of freight out of the Yass and Hume depots. He personally was located at Hume. He described himself as being the appellant's boss. He said that the appellant's job was a truck driver at the Yass depot. He said that the appellant's daily routine would vary, and he may be required to do deliveries to Goulburn, Canberra, Bungendore and Yass. He said that for a time the appellant had been allowed to take one of the respondent's trucks home as a temporary measure until the appellant could obtain his own transport.

16. Mr Randall gave the following evidence about the appellant's duties:

Now, with the truck based at Yass, what would be the normal morning routine for Mr Fisher? --- If the truck was based at Yass the truck was there ready for him to start and nightshift would probably have it loaded for him, then present him with the paperwork which was on that vehicle and then he'd, yeah, proceed and go deliver what was on the load.

And you said it would vary from day to day to some extent? --- That's correct. Yes.

Were there regular runs? --- We normally try and base our Goulburn runs probably three to four times a week if we can try that, to consolidate the freight on those - during the week. That comprises of just various (indistinct) in Goulburn and that and then the other set run was - we did have a distribution of liquor in the afternoon which we had to organise to say, he might do a particular day, he might go Goulburn, back to Yass, into Canberra and then back from Canberra, back out with that grog and back into Yass again.

Now, you mentioned that he might come to Hume sometimes in the course of his work? --- That's correct. Yes.

Would that be something that would happen every week? --- Yes, it would, yes.

And was it usual when he was running between Yass and Hume for his truck to be loaded, to be carry---? --- That's correct. Yes, that was - that's the whole idea of the company, the vehicles would be loaded and have something on them at all times.

And that would happen in both directions? --- That's right. We try and make it that way.

17. Mr Randall said that at the end of each day's run, the paperwork for the day would be delivered to which ever depot the driver finished work at. He said that there would never be any occasions when the appellant commenced his work at Hume, or finished his work at Hume.

18. In cross-examination Mr Randall gave the following evidence:

Yes, but do you accept that proposition that he would do some of his work out of Yass and then some out of Hume so he - depending on where the freight was and then he'd go? --- As I said before, yes, that would probably happen in the afternoon.

Yes? --- To get him back to Yass.

19. Mr Randall also agreed that on occasions he had seen the appellant return paperwork to the Hume depot.

20. The Magistrate, unfortunately, made few findings of fact. He recited the evidence, and said that he preferred the evidence of Mr Hogan to other evidence as he "appeared more reliable". The recitation of evidence is no substitute for making findings of fact. A blanket statement that one witness "appeared more reliable" than others is a quite inadequate substitute for giving reasoned findings on disputed factual matters, and even as to why the evidence of that witness was preferred to other evidence.

21. The Magistrate did make a finding that the appellant sought to remain at the Yass depot after his accident on 14 December 2011, complaining that the Yass depot was his place of work. In my opinion little weight can be given to this circumstance, as in order to undertake the return to work program at Hume the appellant had to drive his own vehicle from his home at Bowning to the depot at Hume at his own expense. Previously, of course, any travel between the Yass depot and the Hume depot had been undertaken in a work vehicle. It is unsurprising, bearing in mind the additional cost to the appellant in travelling daily to Hume, that he would have sought to undertake the return to work program at Yass.

22. The Magistrate then turned to consider the employment connection test found in s 36B (3) of the Act, which provides:

(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 principle place of business in Australia is located.

23. It was accepted by the Magistrate that there was no single Territory or State where the appellant usually worked in his employment. The question was, therefore, whether the evidence established that there was a single Territory or State where the appellant was usually based for the purposes of his employment with the respondent. The Act does not provide any assistance in determining where a worker is usually based in his or her employment. The Magistrate referred to the decision of Commissioner Herron sitting in the District Court of Western Australia in Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78. The Magistrate concluded that the appellant's "usual place of work" was Yass, and that his State of connection for the purposes of s 36B of the Act was NSW. It is accepted by the respondent that the Magistrate made an error in determining the appellant's "usual place of work" because, as the Magistrate himself had earlier remarked, it was accepted that there was no single Territory or State where the appellant usually worked in his employment with the respondent, and the task which the Magistrate was required to address was whether the evidence established whether there was a single Territory or State where the appellant was usually based for the purposes of his employment. It may be that this was simply a slip of the tongue. In coming to his conclusion, the Magistrate referred to the fact that the appellant routinely commenced his employment at the Yass depot; that he received his consignment notes telling him the work he had to undertake at the Yass depot (although these could be varied by telephone calls from management at Hume during the day); that he collected his truck preloaded with goods for distribution from Yass each morning; and that he was not required to attend the Hume depot daily. The Magistrate considered that the fact that the appellant's pay was calculated and paid electronically from Hume did not make that depot his base, nor did the fact that the appellant chose to drop off his timesheets at Hume when he attended there. The Magistrate concluded that the appellant attended the Hume depot "if not daily but certainly two to three times a week".

24. In my opinion the Magistrate was in error in determining that there was a single Territory or State, being NSW, where the appellant was usually based for the purposes of his employment.

25. In Avon Products Pty Ltd v Falls [2010] ACTCA 21, the ACT Court of Appeal considered an appeal from a finding that a worker was "usually based" in the ACT for the purposes of s 36B (3) (b) of the Act. The worker in that case was employed as a District Sales Manager and was responsible for a district wholly within the ACT, although she lived in NSW and performed some clerical duties in her employment at her home. The Court of Appeal (Gray P, Penfold and Marshall JJ) said at [32]:

As no single Territory or State is identified in this case by s 32B(3)(a) of the ACT Act, the court is required by s 36B(3)(b) to attempt to identify where Ms Falls was usually based for the purposes of her employment. The evidence before the Court shows no particular usual base. The fact that Ms Falls did some work from home does not necessarily constitute that place as her base for the purposes of her employment. Something more than a convenient place for part of her duties to be carried out is required before it can be said that her residence was her base in an employment sense. In the same way it might be said that while working in her sales district in the ACT her vehicle was her base. What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate.

26. A similar issue arose in Ferguson v WorkCover Queensland [2013] QSC 78 where the worker was employed as a delivery driver doing the majority of his delivery work in Queensland, but also undertaking some deliveries regularly in NSW. The truck the worker drove was based at Tweed Heads, just over the border in NSW. Applegarth J considered a number of authorities, including Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; (2006) 196 FLR 361, Tamboritha Consultants Pty Ltd v Knight, Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83; (2010) 8 DDCR 535 and Avon Products Pty Ltd v Falls before concluding that the place where a worker is usually based may not be the same place in which a majority of the worker's time is spent each day, although this may be the case. Similarly, the place in which the employer chooses to base certain operations for the purpose of administering the contract of employment, such as payroll administration, may have little to do with the place at which the employee is based for the purposes of that employment, however "the location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant". His Honour went on to say:

[39] In the facts of the present case, the place at which the applicant started and finished work each day has an obvious relevance. So too is the place to which he returned to collect products, and the place at which the vehicle he used for the purposes of his employment was based. The place at which he planned his daily runs and the place at which he received directions about the work he was to undertake by way of delivering products also are relevant in determining where he was "usually based". Whilst regard must be had to these and other facts, none may be decisive in determining where the applicant was "usually based".

[40] It may be inappropriate to place undue weight upon the place at which the worker starts and finishes each working day....

...

[43] Depending upon the facts of a particular case, a worker may have no "base" for the purpose of his or her employment, even in a case in which he or she starts and finishes work each day in the same place. If, however, a base or bases are identified, then the question turns to whether a particular base is the place at which the worker ears "usually based" for the purpose of that employment. The requirement that the worker is "usually" based involves consideration of whether the worker is customarily, commonly or habitually based in that place.

27. In the present case, whether one accepts the evidence of the appellant or that of the respondent's witnesses, I am satisfied that there was no single Territory or State where the appellant was usually based for the purposes of his employment. Even if the evidence of Mr Hogan and Mr Randall that the appellant habitually commenced his day by collecting his truck and merchandise for delivery from the Yass depot, and commenced and finished his daily delivery route at that depot, there is nevertheless evidence that on a regular basis the appellant attended the Hume depot and loaded merchandise on his truck to undertake deliveries out of that depot. When the appellant was on the road he would be given directions about how he was to undertake his work from the Hume depot. It was also accepted by Mr Randall that the appellant had, from time to time, delivered his paperwork personally to the Hume depot. In my opinion, the appellant worked out of both depots to the extent that neither could be said to be the place where the appellant was usually based for the purposes of his employment.

28. I am satisfied that the Magistrate was in error in holding that the Yass depot was the place where the appellant was usually based for the purposes of his employment, and accordingly that his employment was connected with the State of NSW for the purposes of s 36B of the Act. The matter must be remitted back to the Industrial Courtto further consider the remainder of the test under s 36B. The formal orders that I make are:

(a) The appeal is allowed and the finding of the Magistrate that NSW is the State where the appellant usually worked in his employment with the respondent is set aside; and

(b) The matter is remitted to the Industrial Court for further determination in accordance with these reasons.

29. The parties may make any application for costs on seven days notice.

I certify that the preceding twenty nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns