Papas v WorkCover Corporation/EML

1. The provision that governs the determination of this case is s 6. It is a long provision, the relevant components of which, for present purposes, are as follows:

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

(2) The fact that the worker is outside this state when an injury occurs does not prevent an entitlement of 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. ...

(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 injury 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 of 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. ..."

1. I now turn to the evidence, most of which is not in dispute.
2. Mr Papas lives in West Lakes. In January 1999 he commenced employment with Hoverla Ukrainian Credit Co-Op Limited.
3. Hoverla was a co-operative credit society that primarily served the Ukrainian community in this State. There were similar organisations operating in other States. One of those was Dnister which operated in Victoria. These two entities decided to merge. That merger took effect on or about 1 May 2008.
4. Mr Papas continued to work for the merged company at what became the Hindmarsh Branch. He subsequently applied for and was appointed General Manager of the merged organisation on or about 19 January 2011. Thereafter, he continued to work at the Dnister's Victorian office in Essendon, most weeks from Monday to Thursday and at Dnister's now Hindmarsh office most weeks on Fridays and Saturdays.
5. The contract that Mr Papas entered into with Dnister for the period up to 31 December 2010 was tendered in evidence. It describes the employer as "Dnister Ukrainian Credit Co-Operative Limited of 912 Mount Alexander Road, Essendon 3040".[3]
6. The employer was similarly described in the employment contract for the period from 1 January 2011 to 31 December 2013.[4]
7. In documents filed with the Australian Securities and Investment Commission Dnister's principal place of business is described as 902912 Mount Alexander Road Essendon Victoria 3040.
8. In an interview conducted in connection with his claim for compensation there was the following exchange between the interviewer and Mr Papas:

"Q. Now the actual work that you did, the, I suppose to cover the areas, who, what were you actually managing as far as South Australia, how was that being managed and where was that being managed from?

1. In South Australia we have a branch here and in our branch we have around about five or six staff, and it's actually the office that Halyna Grechaniuk is based in. There's a Branch Manager there, there's a Loan Officer, there's three, four Member Service Officers that actually provide the functions, the day to day business of the actual branch in Adelaide. I was actually working off the old, in the old Boardroom back then and it's really, you know, working in Adelaide's no difference in working in Melbourne, working from home, you know, you can sit in front of a computer and you can log on to your desktop from anywhere as if you were working in Melbourne.
2. As General Manager, what was the requirement for you to be in Melbourne?
3. Well that is the Head Office, that is the Head Officer really."[5]

1. In giving evidence before me Mr Papas was asked:

"And at no stage did you ever advise ASIC that the principal place of business of the company was other than Essendon, Victoria, did you? ---No, I didn't, no.

The board meetings were routinely held at the Essendon office in Melbourne? ---Yes, they were."[6]

1. It was agreed in connection with these proceedings that from August 2011 pursuant to National Payroll Tax legislation the payroll location for Mr Papas was changed by Dnister to Adelaide by reason that his primary place of residence determined jurisdiction or liability.
2. It was also acknowledged that in or about August 2011 Dnister adjusted its remuneration declaration to WorkCover South Australia to include Mr Papas' salary. In doing so it acted on an understanding that the location of the employee's payment determined its liability to pay workers compensation premium.

1. Mr Black, counsel for WorkCover, contended that s 6(3) requires a clinical exercise that inevitably, in connection with businesses operated in Australia, will yield an answer as to which scheme applies.
2. He said that the starting point is to identify whether there is a single State where it can be said that the worker usually works. If that enquiry yields an answer, then that is a relevant State for the purposes of determining under which scheme a claim for compensation should be pursued. If that enquiry does not yield an answer in the sense that there is either no State in which the worker usually works or there is more than one State in which the worker usually works, and then one turns to the second limb of the enquiry. That is, where the worker is usually based in undertaking that employment. If that enquiry indicates that there is one State in which the worker is usually based for the purposes of employment, then that is the State that governs the worker's potential entitlement to workers compensation. If that enquiry does not yield an answer then one enquires as to where the employer's principal place of business is.[7] Mr Black then contended that in conducting that enquiry the relevant adjudicatory body, which in this case is the Tribunal, must make an exercise of judgment and must identify a single place. He submitted that it is not contemplated that there could be more than one principal place of business in Australia. He says that s 6(5) is concerned with the situation where there is no principal place of business within Australia and it is only at that point that the identification of the relevant workers compensation scheme is made by reference to where the injury occurred.
3. Both parties concede that Mr Papas usually worked in South Australia and in Victoria and that for the purposes of that employment Mr Papas was usually is based in South Australia and Victoria.
4. It is arguable that Dnister, through its notice of dispute, contends otherwise, but as I indicated it is not placed any evidence before me.
5. Mr Britton, counsel for the worker, contended that it is open for the relevant adjudicatory body to find that there is no one principal place of business in Australia and that this is such a case. He submitted that as result, the relevant State is to be identified by reference to s 6(5), namely where the injury occurred. He then contended that on the evidence here it would be open for me to find that the injury occurred in South Australia and that therefore the Act applies.
6. As I understand him, Mr Britton goes further. He made these submissions:

"...section 6 is not there for a case like this. It's there for itinerant workers, peripatetic workers, whether they be truck drivers, interstate truck drivers, whether they be perhaps fly-in, fly-out people, going to Moomba or up to the northwest of Australia, or, in the case of the woman working for Avon, a woman who goes between New South Wales and the ACT, as part of her - as we all know, Avon is really going from door to door. That is the sort of employment, in my submission, which is aimed at - is considered in section 6, and that's borne out - and I say this in the submission- by the reference in the second reading speech."[8]

"Let's go back and look at Mr Papas. He's lived here all his life, lives at West Lakes. He works part of the time out of the Hindmarsh office and part of the time out of the Essendon office. They're always somewhat difficult, psychological injuries, because we have possibly the question of slow onset, many events, and these things can become redolent with factual inquiries, as, your Honour will recall, one that I had before you which went for some nine or more days, and that's the way - and it's because of the provisions in this state of section 30A, and you have to go over and examine all of the questions of substantial cause, reasonable action and whether there are the other things, like promotion, failure to promote, or reasonable action taken in a reasonable manner - taken by the employer.

Can it be that, if there is any area of doubt as to clearly identifying one State and one State alone - if there is any doubt, in my submission, the interpretation has to be that it's South Australia? It would be entirely unfair and contrary to the whole concept of the remedial legislation if Mr Papas is off the scheme here when his medical advisers are here ... and he has had rehab. Can it possibly be that, if we could put ourselves into the shoes of the learned members on North Terrace, they would have said, 'Oh yes, we absolutely envisage that a man who's not an interstate truck driver' - and I'm only using that because they're the examples they seem to think about, or the fly-in-fly-out workers et cetera - would we imagine that, if he is incapacitated for work, can't return to work, and, I might add, is dismissed from his employment - would you imagine that you would expect him to be trying to get rehabilitation in the State of Victoria? How would it work, how do the travel arrangements work, what about his accommodation et cetera?"[9]

1. If these submissions are correct it must follow that ss 6(3) and (5) are not an exclusive code but are simply examples of circumstances where a worker could be held to be entitled to compensation under workers compensation scheme of the State nominated, if the outcome of the inquiries provided by these provisions receives a positive response.
2. These submissions assume that the overarching inquiry is that contained in s 6(1), and that is, the fact of the connection with this State. These submissions assume that provided that the relevant adjudicatory body is satisfied that there is sufficient connection, independently of the criteria contained within s 6, is open for that adjudicatory body to find that this or some other State is the relevant State for the purpose determining an entitlement to compensation.

1. There can be no doubt that the focus of contemporary workers compensation legislation in this country is directed towards the effective rehabilitation of injured workers. There can be no doubt that rehabilitation is likely to be more effective if the worker has the support of family and friends and has access to trusted medical and like advisors.
2. It is therefore easy to accept the proposition that a worker's rehabilitation might be made more difficult if the worker had to access claims support and rehabilitation and medical treatment interstate.
3. If the legislature had these matters in mind in enacting this type of provision, it might have been expected that the territorial provision would provide that the relevant State for the purposes of workers compensation coverage is the State in which the worker usually resides, and that if there is no such State, it is the State where the injury occurred.
4. However, that is not what the legislation provides.
5. Mr Britton's argument that s 6 permits a level of discretion requires the Tribunal "to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose".[10] That is not a permissible approach to statutory construction. As the High Court held in the Australian Education Union v Department of Education and Children's Services, what is required is "a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose".[11]
6. The plain purpose of provisions like s 6, legislated across Australia, is to reduce, if not eliminate, the possibility of a worker suffering a workplace injury within Australia, falling between the cracks, as occurred in Selamis v WorkCover Corporation/NZI Workers Compensation (SA) Pty Ltd (G and T Georgopoulos Transport) JD 36 of 1997),[12] WorkCover Corporation v Smith[13] and Thompson v WorkCover Corporation/Vero Workers Compensation (River Transport Pty Ltd).[14]
7. The provision is not concerned with identifying which scheme is the most desirable one for a particular worker. If there were any doubt about the focus being towards producing a clear outcome that ensures that a worker will not be left without cover, one only has to look to ss 6A and 6B of the Act. Those provisions require the Tribunal to make a determination as to which State the worker's employment is connected with, to cause that determination to be entered into its records and to then declare that subject to correction on appeal the determination is binding. It is notable that s 91A of the Accident Compensation Act of Victoria 1985 is in identical terms and that if I were to find that Victoria is the State that Mr Papas's employment is connected with, subject to correction on appeal, the Victorian Courts would be bound to adopt that finding.
8. I therefore conclude that s 6 is an exclusive code and that there is no residual discretion in the Tribunal to determine the issue of territoriality by reference to what it might think is the best fit.
9. I now turn to apply the various tests provided for by the provision.
10. On the basis of the evidence presented, I find that for the purposes of s 6(3)(a) and (b), Mr Papas usually worked for Dnister in South Australia and in Victoria and that he was usually based for the purposes of that employment in South Australia and in Victoria.
11. Thus I need to look elsewhere to find the answer in this case.
12. Mr Black contended that the determinative issue in this case is the test postulated by s 6(3)(c), namely "the State in which the employer's principal of business in Australia is located". He submitted that on the facts here it was Victoria.
13. That still begs the question as to whether there can be more than one principal place of business and if so whether there was more than one here.
14. Mr Britton said that I need look no further than national law firms to conclude that there can be.
15. Mr Black acknowledged that Roche DP in Martin v Hibbens Pty Ltd[15] suggested that there could be more than one principal place of business within Australia, and that the there equivalent of s 6(5) was not confined in the manner he suggested. He submitted that I should not follow that approach.
16. I agree that it would be open for me not to do so. The remarks by Roche DP on this topic were plainly obiter.[16] Whilst they should be accorded some respect they are not in any way binding upon me.
17. I favour the construction suggested by Mr Black. I think it conforms to the meaning that the legislature should be taken to have intended, that is, creating a series of clear tests designed to ensure that a worker employed and injured in Australia will not be left without cover. This is the approach that the Tribunal is obliged to adopt in construing the provision.[17]
18. Consistent with this, if two constructions are available here, the construction that produces a certain outcome should be preferred.
19. Consider the alternatives.
20. It is a fact of life in the corporate world for businesses that operate across Australia to identify and nominate the principal place of business. It is a clear and achievable exercise and it would mean that for workers employed by employers who have a business centre in Australia who suffer workplace injuries that they will be able to identify the relevant scheme by the application of the cascading tests provided for by s 6(3) of the Act.
21. In contrast to this, if one had to identify where the injury occurred to identify the relevant State, uncertainty could result.
22. In the case of a person working in more than one State, ascertaining where an injury occurs will usually involve ascertaining when the injury occurred.
23. The following example illustrates the potential uncertainty of that exercise. An interstate truck driver feels unwell over the course of an interstate trip and is subsequently diagnosed with having had a heart attack. In which State did this injury occur?
24. That might be a very difficult question to answer. Did it happen in New South Wales, when he felt a dull ache in his left arm when he was loading the truck in Sydney? Did it happen in Victoria, when he had an upset stomach at the rest room at a service station in Mildura? Did it happen in South Australia, when he felt stressed and light headed whilst driving along Main North Road towards Adelaide?
25. True it is that there are deeming provisions like s 113 of the Act[18] that can assist in identifying when an injury occurs when it develops gradually. But it is not certain that they apply to s 6(5); they are not necessarily uniform across Australia; and their application is not necessarily assured of producing a clear outcome.[19]
26. Indeed, if s 113 applied in this case, it might not produce a clear outcome.
27. In the claim form that Mr Papas completed in connection with these proceedings he nominated 19 March 2012 as being the date when he stopped work as a result of his adjustment disorder. He completed the form on 11 April 2012. He said that the disorder resulted from "ongoing behaviour dating back to almost four years".[20]
28. In a medical report of Dr Jonathan Fry, tendered in these proceedings, is an extract from a report from Mr Papas's GP, Dr Buttery. It records his initial presentation on 28 January 2009; a diagnosis of an adjustment disorder; and a statement that: "Bill Papas is totally incapacitated from work in his current environment."[21]
29. In a record of interview prepared in connection with WorkCover's investigation of Mr Papas' claim in response to the statement: "...you've got your date of injury as the 18th of March, so you've gone through quite a bit of history", Mr Papas said: "...you can almost put that date going back 18 months earlier if you wanted..."[22]
30. In light of this did Mr Papas first become incapacitated for work in April 2012 as indicated in the claim form? Or was it in or about April 2008 as elsewhere suggested in the claim form? Or, was it January 2009 as indicated in the extract contained in Dr Fry's report? Or, was it in September 2010 as suggested in the record of interview?
31. Moreover, the language of the provision supports Mr Black's suggested approach. It is notable that the word "place" is in the singular.
32. As it is I do not need to resolve this issue because in this case the evidence is pretty much all one way in establishing that the principal place of business of Dnister is its Essendon office in Victoria. That is how Dnister described it in the contractual documents that it had Mr Papas sign. That is how Mr Papas himself described it when interviewed. It is where Dnister's board meetings were held. It is reasonable to infer that it is where important decisions regarding the operations of the business were held. It plainly was the "chief, most important or main place of business from where the employer conduct[ed] most or the chief part of its business."[23]
33. The facts that Dnister changed the payroll location for Mr Papas to Adelaide for the purposes of National Payroll Tax legislation and that it adjusted its remuneration declaration to WorkCover South Australia to include Mr Papas's salary here are neither here nor there.
34. I therefore find, as a fact, that Dnister's principal place business in Australia is located in Victoria and that as a consequence the Act does not apply.
35. I would make that finding even if, on the proper construction of s 6, it were permissible to find that there was more than one principal place of business within Australia.
36. As the application of the test postulated by s 6(3)(c) of the Act has yielded a positive answer I need look no further.

1. I uphold the employer's challenge to the determination made by WorkCover accepting Mr Papas's claim and determine in lieu thereof that Mr Papas is not entitled to compensation under this Act. I do so, as I have found that Mr Papas's employment is not connected with the State of South Australia for the purposes of s 6 of the Act, but rather, it is connected with the State of Victoria.
2. In accordance with s 6A of the Act I direct that the determination that at all relevant times Mr Papas' employment was connected with the State of Victoria is to be entered into the Tribunal's records.

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.

[2] See, for example, Kairns v WorkCover Corporation [2004] SASC 352; (2004) 90 SASR 81

[7] None of this is controversial. It is consistent with the approach suggested by the ACT Full Supreme Court in Avon Products Pty Limited v Falls [2010] ACTCA 21

[10] Australian Education Union v Department of Education and Children's Services [2012] 3 HCA at para 28 per French CJ, Hayne, Kiefel and Bell JJ.

[11] Australian Education Union v Department of Education and Children's Services [2012] 3 HCA at para 26 per French CJ, Hayne, Kiefel and Bell JJ

[13] (1998) 72 SASR 239

[14] [2004] SAWCT 90

[15] [2010] NSWWCCPD 83

[16] [2010] NSWWCCPD 83 at para 84

[17] See, for example: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

[18] Section 113(1) provides: "An injury (not being noise induced hearing loss) that develops gradually or is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury."

[19] The factual enquiry of determining when a worker first becomes totally or partially incapacitated for work by an injury is not necessarily a straightforward one.

[23] Martin v Hibbens Pty Ltd [2010] NSWWCCPD 83 at para 80