Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5

2. On 11 December 1999, the appellant was driving a bus in the course of his employment with the respondent. Near Taree in New South Wales, the bus collided with a car killing its three occupants. The appellant made a claim for workers compensation in respect of a post-traumatic stress disorder that he claimed arose as a consequence of this incident.

3. The employer carried on business as an interstate motor coach operator from premises at the Jolimont building at the corner of Northbourne Avenue and Rudd Street, Canberra City. In early 1998 the appellant was employed on a casual basis as a bus driver and on a regular basis from July 1999. It is common ground that the appellant carried out his duties as a bus driver for the respondent using as his "base" the Jolimont Centre and driving buses mainly between Canberra and Sydney but also on occasions between Canberra and Melbourne. He also drove buses between Canberra and Thredbo in the snow season and very occasionally drove charter buses entirely within the Australian Capital Territory. At the time of the motor vehicle accident, he was engaged for the first time in driving a bus for the respondent on the Sydney/Brisbane route that the respondent operated. In order to undertake that particular trip, he had left Canberra on one of the respondent's buses as a paid passenger of the respondent before commencing to drive that route.

4. The appellant was paid compensation by the respondent's New South Wales workers compensation insurer. Those payments were apparently made by the insurer on the basis that the appellant was entitled to workers compensation under the law of New South Wales. That basis was not communicated at the time to the appellant.

5. It was, however, communicated to the appellant by a letter dated 29 October 2004 and signed on behalf of the respondent's New South Wales workers compensation insurer. That letter informed the appellant that the respondent proposed ceasing payments of weekly compensation to the appellant under the provisions of the workers compensation scheme that applied in New South Wales. The letter further informed the appellant that payments made to him under that scheme would cease on 12 December 2004.

6. By application for arbitration filed in the ACT Magistrates Court on 11 November 2004, the appellant commenced proceedings for compensation under the ACT Act. That application sought a preliminary determination, as a threshold issue, of whether the appellant was entitled to compensation under the ACT Act. The respondent filed a notice of answer to the application on 6 December 2004.

7. At the time of the injury on 11 December 1999, the ACT Act provided in s 7A(l), that an employer was liable to pay compensation only in respect of an injury suffered by "a worker of this Territory". Section 7A provided:

7A Compensation limited to Territory workers

(1) An employer is liable to pay compensation only in respect of an injury suffered by a worker of this Territory.

(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.

(3) If a worker usually carries out the work of his or her employment in a particular Territory or State ("the home Territory or State"), but pursuant to a defined temporary arrangement carries out that work elsewhere (whether within or outside Australia), the worker is nevertheless to be regarded as a worker of the home Territory or State while carrying out the work elsewhere.

(4) A worker who is not otherwise a worker of this Territory is to be taken to be a worker of this Territory if the worker--

(a) receives an injury in this Territory;

(b) is not a worker of any other Territory or any State; and

(c) is not entitled to compensation in respect of the injury under the enacted law of a place outside Australia.

(5) In subsection (3)--

defined temporary arrangement, in relation to the employment of a worker, means an arrangement that is part of that employment for the worker to carry out the work of the employment for a period that may reasonably be thought likely to be of less than 6 months' duration.

8. The respondent's contention, which the magistrate upheld, was that s 7A(2)(a) of the ACT Act applied and the appellant "usually carries out the work of the employment" in the State of New South Wales because, as the magistrate held, "the majority of the time spent by the [appellant] carrying out the work of his employment was spent in New South Wales, and not the Australian Capital Territory".

9. The appellant unsuccessfully contended before the magistrate, that it was customary for the appellant to carry out the work of his employment in, at least, New South Wales and the Australian Capital Territory. It was said that as the appellant usually carried out his work in both the Australian Capital Territory and New South Wales, there was no single Territory or State identified by s 7A(2)(a) of the ACT Act and s 7A(2)(b) applied, the Australian Capital Territory being the Territory which was the appellant's base for the purpose of the employment.

The approach to interpretation of the provision

10. Both parties adopted the same approach to the interpretation of the provision with a markedly different outcome. The approach that they adopted was the purposive approach. Section 139(1) of the Legislation Act 2001 (ACT) (Legislation Act) provides:

In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

11. In reliance upon s 141 of the Legislation Act, extensive reference was also made by both parties to extra legislative materials in seeking to ascertain that purpose.

12. In the result I accept that, arguably, there may be two views as to the interpretation as to what is meant by s 7A of the ACT Act but consider that the view propounded on behalf of the respondent cannot be sustained either by reference to the ordinary construction of the provision or by reference to the purpose that its enactment seeks to achieve.

13. In order to ascertain that purpose, it is necessary to have regard to the whole of the Minister's Presentation Speech because the section in question is the foundation for the scheme introduced by the amendment Act.

WORKERS' COMPENSATION (AMENDMENT) BILL (NO. 2) 1996

MINISTER'S PRESENTATION SPEECH

I am pleased to introduce into the Legislative Assembly, the Workers' Compensation (Amendment) Bill (No. 2) 1996.

The Bill, if passed by the Assembly as it is introduced, will provide:

* workers' compensation coverage for any one worker under one insurance policy;

* determination of the worker's State or Territory for compensation purposes;

* that the existing coverage for an ACT worker who receives an injury anywhere in Australia, is extended to include work injuries received while out of Australia (this will bring the ACT into line with NSW and other jurisdictions); and

* compensation for a worker injured in the ACT but who is not an ACT worker, and is not a worker of any other State or able to claim compensation outside Australia (this will bring the ACT into line with NSW and other jurisdictions).

These amendments to the Act demonstrate the Government's commitment to improving the ACT workers' compensation scheme, easing the financial burden on employers, and providing a fair and equitable compensation coverage for injured workers.

At present, ACT employers are required to have more than one workers' compensation policy to cover employees who work in more than one State. This is an unnecessary financial burden for our employers as it means that wherever an additional policy is required, there is a duplication in the payment of premium, although, of course, the employee(s) receives only one wage or salary.

Also, employees, who are injured while working interstate, may claim compensation, in either the "home" Territory (or State) or where the injury occurred, where the benefits are perceived to be more favourable. This creates an undesirable practice known as "forum shopping".

This has a particular disadvantage for the ACT scheme which is one of the few workers' compensation jurisdiction to still have unlimited access to common law. An interstate worker, if injured while working in the ACT, may lodge an ACT compensation claim and/or common law action (which may not be possible in the worker's "home State"). If either claim was successful and if no ACT policy was held by the interstate employer, then the ACT Nominal Insurer would pay the amount of compensation or damages. ACT insurers would then be levied for the amount of compensation or damages, meaning that our ACT insurers would be required to pay for a claim for which no premium had been received in the ACT.

Recovery action from the employer of the amount paid is not always successful due to administrative difficulties caused by their location interstate. As such, there is the likelihood that the ACT scheme may pay compensation for a non-ACT worker for which there is no recovery, and those compensation costs are subsequently passed on to ACT employers through increased premiums

Mr Speaker, these simple examples clearly show how our ACT employers and our ACT scheme with its unlimited access to common law may be financially disadvantaged compared to other jurisdictions.

In general, all employers are disadvantaged when they are required by law to maintain more than one worker's compensation policy if their employees work in more than one Territory or State. This imposes a significant duplication of costs on employers, in particular for the road transport industry in which case these costs have to be passed on to the consumer by way of higher freight charges.

The Heads of Workers' Compensation Authorities, acting under the auspices of Labour Ministers' Council, identified these inequities and have given "cross border" issues top priority in their objective of achieving national consistency in workers' compensation. The Territories and States have agreed to introduce uniform complementary legislation to commence on a common starting date, so that any Australian employer will only be required to have one workers' compensation policy and an injured worker will be required to seek compensation in his or her "home" Territory or State.

The proposed amendments are based on those agreed by the NSW Parliament and agreed to in principle by the other jurisdictions and will:

* maintain the "status quo" in the ACT in requiring an ACT workers' compensation policy to cover an employer's common law liability, and to ensure both statutory and common law benefits are available to ACT workers;

* simplify workers' compensation arrangements for employers who have interstate workers as recommended, and agreed to by the Government, in the Red Tape Task Force report; and

* remove inequities, which disadvantage the ACT scheme, that occur under the present Act.

The introduction of the proposed amendments has no financial implications for the ACT Government. However, savings in premiums will be available to ACT employers, who are currently required to take out multiple workers' compensation cover for their employees who work in the ACT and interstate.

Savings should also be available to ACT insurers as interstate workers, injured while employed in the ACT, will claim compensation in their home State and not the ACT. ACT insurers may receive less revenue through a reduction in premium from non-ACT employers, but it is expected this will be more than offset by reduced administration and compensation costs currently faced by the exposure to a compensation claim and likely common law action from a non-ACT injured worker.

These financial benefits will apply to all Australian workers' compensation jurisdictions as the "cross border" legislation is designed to provide workers' compensation coverage by the one policy in the worker's (or employer's) "home" Territory or State.

As for the provision of compensation, the current coverage will be expanded to include ACT workers temporarily working interstate or overseas, and to compensate a worker, who is not an ACT worker, if that worker is injured in the ACT, is not a worker of any other Territory or State, and is not entitled to any compensation for the injury under a law of a place outside Australia.

This Bill, which I present to the Assembly, is a very simple but significant improvement to the ACT workers' compensation scheme and in conjunction with other Australian jurisdictions, will deliver significant cost savings for all Australian employers while providing a fair and equitable compensation scheme for injured workers in the ACT and elsewhere.

I commend the Bill to the Assembly.

14. The points that may be made about this speech are as follows:

* There is a clear intent to try to achieve for the benefit of employers one workers' compensation policy for the Australian Capital Territory employers who have employees working in more than one State. That, as the speech asserts, will be achieved by provisions identifying a "home" Territory or State and complementary legislation in the other States and Territory to enable only one "home" Territory or State to be applicable to any particular worker.

* It is also significant that the preservation of common law rights available to Australian Capital Territory workers should be covered by the employer's insurance and that premiums should be ascertained for that liability.

* The reference in the Minister's Presentation Speech to the identification of inequities by the Heads of Workers Compensation Authorities is a reference to an Interim Report of that body dated May 1996. That report affirmed "the need for a uniform national basis to ascertain the jurisdiction which should be affixed with legal liability for a particular worker's compensation claim". The report concluded that: "... the jurisdiction which should have such liability is, of course, that which has the closest connection with the employment out of which the claim arose".

* The report also referred to legislative provisions that had been enacted but not proclaimed in Victoria, New South Wales, Queensland, Tasmania, the Northern Territory and South Australia. The report referred to Western Australia as having drafted such a provision and that Cabinet agreement had not been reached on draft legislation in the Australian Capital Territory. Reference was also made to the need for "fine tuning" and "final harmonising" by the Standing Committee of Parliamentary Counsel.

15. The particular provisions to which the Report refers appear to be:

* s 3, Schedule 6, cl [1], Workers' Compensation Legislation (Amendment) Act, 1995 (NSW);

* s 34, Accident Compensation (Amendment) Act 1994 (Vic);

* s 12, Workers' Compensation (Amendment) Act 1994 (Qld);

* s 6, Workers' Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 (SA);

* s 27, Workers Rehabilitation and Compensation Reform Act 1995 (Tas);

16. The provisions at that time contained the similar proposition of the usual carrying out of the work of the employment in a State or Territory and providing the circumstance where more than one State or Territory was involved in the carrying out of that work to ascertain the "connection" by means of a base or place of hiring for the purposes of the provision. At that time, provisions in Victoria and Queensland contained a notion of "principal place of employment", however that was governed by the connection considerations that appeared in the other legislation. Tasmania's "principal place of employment" was ascertained by the usual carrying out of work in a particular State or Territory, or if more than one, the principal place of business of the employer.

17. From all this, I consider that it is quite clear that the purpose of s 7A of the ACT Act is to give effect to a national scheme to enable the ascertainment of the appropriate State jurisdiction for workers compensation purposes. The achievement of this purpose is to be complementary to the other provisions in existence or enacted at about the same time which have as their purpose the remedying of the need for more than one insurance policy for employees working in more than one State or Territory and the prevention of forum shopping which both the appellant and the respondent identify as purposes of the legislation. It follows that any interpretation of the ACT Act should, if practicable, not create an inconsistency with the other State and Territory provisions.

18. Subsequent to the enactment of s 7A of the ACT Act, further refinement has been made to the provisions in the other States to reflect matters which assist in working out the basic concept. These matters are reflected in what is now s 36B of the ACT Act inserted by Schedule 1, cl [1.3] of the Workers Compensation Amendment Act 2003 (No. 2) (ACT). Section 36B(6) now provides:

(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 preceding 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

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

19. Although there are differences in style and format, the thrust of the present State and Territory legislation is basically the same and there is now a common unity of purpose in providing the means of ascertainment of the application of the various Acts to a worker. Only one State has provided content to the concept of when a worker is "usually employed" in a particular State or Territory. Section 6(4)(c) of the Workers Rehabilitation and Compensation Act 1986 (SA) provides:

a worker is usually employed in a particular State if 10% or more of the time the worker spends working in employment is (or is to be) spent working in the State.

20. The interpretation that the appellant contends for would, at least as far as South Australia is concerned, create a disconformity with the complementary scheme.

21. Reference was made by the magistrate and by both parties to dictionary definitions. "Usually" is defined in the Shorter Oxford Dictionary to mean:

Usually ... adv_. 1477. ... 1. In a usual or wonted manner; according to customary, established, or frequent usage; as a rule. 2. In a regular manner - 1605_

Usual ... a. late ME. ...1. That is in ordinary use or observance; commonly observed or practised; current prevalent. 2. Ordinarily used; in common use; ordinary customary 1444. b. Of persons: Commonly employed or serving in a particular capacity 1590. 3. That ordinarily happens, occurs, or is to be found; common, wonted 1577. b. Customary on the part of a person or persons to do something 1605. c. Common or habitual to a person or thing 1655. d. As (or than_) u., as (or than) is or was customary or habitual. Also, in facetious use,_ as per u_. 1716. 4._ absol_._ The (his, etc.) usual_, what is usual, customary, or frequent (esp. with a person or persons) 1876._

usual ... adjective 1. habitual or customary: his usual skill_. 2. such as is commonly met with or observed in experience; ordinary:_ the usual January weather_. 3. in common use; common:_ say the usual things. - noun 4. that which is usual or habitual. - phrase 5. As usual, as is (or was) usual; in the customary or ordinary manner: he will come as usual ...

and cites "usually" as the adverb without further elaboration.

22. The respondent's principal contention is that an interpretation which gives the word "usually" in s 7A of the ACT Act a meaning of prevalence, in the sense of more often than not, achieves the legislative purpose. It is said that such a test has the merit of logic and simplicity by reflecting the magnitude of the risk of injury defined by reference to the relative time spent in performance of the worker's duties in each jurisdiction. That submission was accepted by the magistrate. However, I am unable to agree that such an interpretation is readily open on the definitions that I have cited. Notions of usage that embrace that which is customary, frequent or regular do not imply a quantitative test as the magistrate apparently thought. Nor can I accept the magistrate's reasoning that as "usually" is not a synonym for "invariably" therefore it must involve a quantitative test.

23. There are a number of reasons for rejecting the respondent's contention and the magistrate's acceptance of them. In the first place, if it were the case that it was intended to quantify the time spent in each place, the legislature could have simply provided such a test. Furthermore, the consequential circumstances set out in s 7A(2)(b) and (c) would then seem to be infelicitously expressed. Significantly also, the respondent concedes that it would only be "relatively rare evenly balanced cases ... or cases of too much complexity" that would call for determining the workers' base or the place of hiring. That of itself indicates uncertainty and difficulty of application. Further, the notion upon which the Minister's Presentation Speech is predicated of identifying a "home" State or Territory, carries no connotation, in my mind, of quantifying the amount of work done in a particular State or Territory.

24. It was also said that the provision of s 7A(2)(a) of the ACT Act would have been unnecessary unless it has a quantitative aspect, as all workers who do not have any connection with another Territory or State would, in any event, be encompassed by s 7A(2)(b) as having a "base" in the single Territory or State. That submission, insofar as I understand it, cannot lend support to the appellant's position as those who quantitatively spend the whole of their working time in a particular Territory or State have no need for a "base".

25. The structure of s 7A(2)(a) tells against the appellant's submission. The circumstance that predicates the operation of the provision is the involvement of the work of the worker with a single Territory or State, or if no single Territory or State, then the single Territory or State comprising the worker's base for the purposes of employment. If there is no Territory or State or no single Territory or State which is the worker's base, then the Territory or State in which the worker was hired will be the appropriate Territory or State for compensation purposes. The fact that one or more Territory and State are envisaged apart from a single Territory or State indicates that what is involved is more than just asking the question of where the worker spends the majority of his working time.

26. I consider that by giving "usually" its more obvious meaning of habitual or customary, or that of "in a regular manner", the test posited by s 7A of the Act (and the corresponding sections of the legislation in the other States and Territories) is relatively simple and straight forward.

27. The test is a progressive test. If there is a State or Territory which satisfies the first limb (s 7A(2)(a)), then there is no need to progress to the second (s 7A(2)(b)) and if the second is satisfied, there is no need to go to the third (s 7A(2)(c)). That does not mean that each limb is to be construed without reference to the overall objective to be achieved by the provision and that objective can sensibly be achieved by looking to the customary or regular places where the work is carried out.

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. Consequently, the better interpretation of the provision and the one that best gives effect to its purpose is that advanced by the appellant.

29. It follows that the magistrate erred in law in ruling that the application of the provisions of s 7A(2)(a) of the ACT Act to the evidence before him leads to the conclusion that the appellant was a worker of the State of New South Wales and not of the Australian Capital Territory.

30. I uphold the appeal against this ruling and remit the proceedings to the Magistrates Court for further hearing and determination.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the appellant: Pamela Coward & Associates