Tebbey v Hih Workers Compensation Corporation

"(1) This Act applies to a worker's employment (either within or outside the State) if there is a nexus between the worker's employment and the State.

(2) A nexus exists between a worker's employment and a State if -

(a) the worker is usually employed in the State and not in any other State; or

(b) the worker is usually employed in 2 or more States but is based in the State.

(3) In addition, a nexus exists between a worker's employment and this State if -

(a) the worker is not usually employed in any State; but

(b) the worker is employed in the State or the worker's employment involves (or is likely to involve) recurrent trips to and from a base in the State, and the worker is not protected against employment-related disabilities by a corresponding law."

4 The learned Deputy President from whom this appeal comes found:-

1. Prior to 1965 the appellant had worked for the respondent, and he resigned in 1965.

2. Between 1965 and 1985 he was not employed by the respondent.

3. After 1985 the respondent on an ad-hoc casual or "intermittent" basis had employed the appellant.

4. From mid November 1993 until June 1994 he worked full time for the respondent.

5. Thereafter for the next four years the worker worked on an intermittent casual basis for the respondent.

6. In August 1998 the appellant and the respondent entered into an agreement for the appellant to perform work for the respondent in Queensland. That work consisted of overseeing and refitting a cray boat then lying at Cairns in Queensland.

7. On 23 November 1998 the appellant sustained personal injuries following an explosion on board the boat.

8. All of the work on the cray boat was to take place at Cairns and nowhere else.

9. The Deputy President found that none of the work on the cray boat was, or was intended to be performed in South Australia. That is a finding of fact. It is not open to question before the Full Tribunal.

10. Hence the learned Deputy President concluded that the appellant was "usually employed" in Queensland.

Mr Saies submitted that that conclusion was not open as a matter of law to the learned Deputy President.

5 The essence of the submission of the appellant was:-

(1) There is a "nexus" between the appellant's employment and South Australia. That nexus is presumably that the contract of employment was entered into in Adelaide; that the appellant retained a base in Adelaide and that the relationship should have been examined in the context that the whole of the appellant's working life was spent in South Australia or the whole of the appellant's career with this employer, the respondent.

(2) The appellant submits that the facts show that the appellant was not "usually employed" in Queensland but in South Australia because only the period August/November 1998 was spent in Queensland.

This conclusion is urged upon us by the fact that:-

(a) prior to August 1998 whenever the appellant had been employed, he performed the work in South Australia;

(b) s 6 invites the question of the "totality of the relationship with the respondent", such an approach being consistent with the "expansive definition of employment in footnote 2"; i.e. "employment" is a reference to the actual work not to the legal concept; and

(c) s 6 generally uses the term "employment" to provide for an analysis of the worker's employment over time.

6 It is inherent in the appellant's submissions that if the appellant was "usually employed" in Queensland, the criteria for compensability in s 6(2)(a) and s 6(2)(b) cannot be met.

7 The only issue then is whether on the facts as found, was the learned Deputy President justified in coming to the conclusion that the worker was "usually employed in Queensland".

8 To the extent that this raises a question of law it is our view that:-

1. The place of formation of the contract of employment is of no assistance. Employment means "the actual performance" of the work - see WorkCover Corporation/MMI (Geo Systems P/L) v Forsaith 158W/1997 WCAT 9 per McCusker J.

2. The learned Deputy President in paragraph 18 treated the August/November 1998 Cairns work as a relationship, discrete from the ad hoc casual relationships from December 1993 onwards in which the appellant apparently worked in South Australia. This includes the period of full time employment in Adelaide in 1993/1994.

9 It is important to note that the appellant resigned from his employment from the respondent first in 1965 and later in June 1994 when he was 70. Thereafter he did occasional casual work for the respondent; he was not at that stage "usually employed" anywhere. Moreover, in examination in chief (184/185 AB), the worker said that in the twelve months leading up to the Cairns project, he had totally lost interest in the respondent's factory and engineering work. He stopped going to the hobby room regularly. He told the learned Deputy President he would occasionally go there for his own benefit. In the three months prior to the Cairns job if he did any work for the respondent (and he was unsure of this) he would only have worked on "a couple of Saturday mornings".

10 The language of s 6 of the Act has its focus on where the "work was performed"; that work is the work relevant to his employment. It does not require an examination of where the work was performed under other contracts of employment.

11 The fundamental finding underpinning the learned Deputy President's judgment, was treating the cray boat repair job, as being a separate exercise, discrete from those periods of employment in South Australia that preceded it. It was a separate exercise that had its own separate and unique terms and conditions. This led the learned Deputy President to find as he did in par 18 and par 21 of his decision:

"18. It is clear that all of the work performed by the worker pursuant to his engagement by Ray Irons was performed outside of South Australia and in the State of Queensland.

19. The Act can only apply to a worker's employment if there is a nexus between the worker's employment and the State - s 6(1). Clearly this means the State of South Australia. Mr Saies' submission notwithstanding, it is not possible for a worker to establish a nexus otherwise than by satisfying one of the criteria in s 6(2) or s 6 (3): WorkCover Corporation v Smith (1998) 72 SASR 239.

20. Cl 2 in s 6 provides that `A reference to employment is a reference to the worker's work (and not to employment as an abstract legal relationship)'. In this instance, the worker's employment for the purposes of s 6 refers to the work he performed and was to perform in Queensland pursuant to the agreement he made with Ray Irons. None of this work was, or was intended to be, performed in South Australia.

21. I am satisfied and find that with respect to the worker's employment pursuant to the agreement he made with Ray Irons in August 1998 he was usually employed in the State of Queensland and not in South Australia."

12 The appellant's submission at 26 of the trial transcript that "the section required on examination of the worker's entire employment history with a particular employer" was rejected by the learned Deputy President. If that conclusion was available to the learned Deputy President then it follows inexorably that the work under this arrangement was "usually performed" in Queensland.

13 S 6(2) of the Act provides a complete code as to the meaning of nexus with South Australia: WorkCover Corporation v Smith (supra) approving Selamis v WorkCover Corporation/NZI Workers Compensation (SA) Pty Ltd (G & T Georgopoulos Transport) JD36/1997.

14 In our view s 6 is not capable of bearing the construction proposed by the appellant, on the facts of this case, and in the context of the learned Deputy President's findings.

15 Indeed, the construction of s 6 urged upon us by the appellant that the section authorises an examination based on the history or location of the worker's working life would produce extraordinary results, especially if service with employers other than the respondent is factored in, as was conceded by Mr Saies.

16 In our view the learned Deputy President was called upon to determine the relevant employment and this he did. Having examined the trial transcript, such a conclusion that the employment from August/November 1998 was the relevant employment, was amply available to His Honour, as were his findings referred to earlier herein.

17 The foregoing formed the basis of our ex tempore reasons for decision on the 7 September 2001.