WorkCover Corporation (Green Triangle Forest Products Limited) and Anor v Crute [2013] SAWCT 19

"No employee is an asset in the employer's balance sheet to be bought and sold."

1. At law, once Green Triangle sold its business to Carter Holt Harvey, Mr Crute's contract of employment with Green Triangle came to an end and he entered into a new contract of employment of with Carter Holt Harvey.
2. Be that as it may, what followed is at the nub of the dispute between the parties.
3. WorkCover created a series of rehabilitation and return to work plans that required Mr Crute to undertake modified duties with Carter Holt Harvey.
4. There is nothing preventing WorkCover from imposing obligations upon a worker to work for an entity different to the employer in whose employment the worker suffered injury.
5. What makes this different is that WorkCover constructed the plans in a way that suggested that Carter Holt Harvey was the pre-injury employer.
6. Although the plans identified the pre injury employer as Green Triangle, they then went on to identify the focus of the plan as being to undertake suitable employment with the pre injury employer, which identified as Carter Holt Harvey, and it required it to sign the plan and stipulated that it was binding upon Carter Holt Harvey and Mr Crute.
7. What later happened was that on 21 December 2012, Carter Holt Harvey terminated Mr Crute's employment.
8. Following this Mr Crute has sought the provision of rehabilitation and return to plan that requires Carter Holt Harvey to provide him with employment on modified duties.
9. In pursuing this application, WorkCover contends that he had no legal right to do so. It submits that only the pre injury employer can be bound by a rehabilitation and return to work plan and that as Carter Holt Harvey is not the pre injury employer it cannot be bound and therefore there is no relief that the Tribunal can provide.
10. Mr Crute resists the application on the basis that the position is unclear and needs to be determined at trial. He contends that the way in which WorkCover constructed prior rehabilitation and return to work plans suggests that Carter Holt Harvey, as part of its acquisition of Green Triangles business, agreed to assume Green Triangle's obligations to workers who suffered injury in the course of their employment with Green Triangle. Hence, he contends, that it is at the very least arguable that the Tribunal may be able to bind Carter Holt Harvey to a rehabilitation and return to work plan.
11. I disagree.
12. The only employer that could be bound to a rehabilitation and return to work plan was the employer in whose employment the worker suffered a compensable injury. This is made clear by the terms of s 28A of the Act. After defining the circumstances in which WorkCover must prepare a rehabilitation and return to work plan for a worker it stipulates in s 28A3(a) that WorkCover "must consult with the worker and the employer out of whose employment the injury arose" (emphasis mine). It then provides through s 28A(6) that "The plan is binding on the worker and the employer."
13. Plainly it is the employer out of whose employment the injury arose who is bound by the plan, because otherwise, it would make no sense that that is the employer who must be consulted.

21 Although the private contractual arrangements between parties resulting in the transfer of employment might be relevant in determining whether or not a supplementary levy should be payable under the Act.[2] I cannot see how a private arrangement between entities can transfer the legal obligations that one entity has under the Act, as an employer, and pass them on to another entity. To the extent that such an arrangement purports to do so it arguably might run foul of s 119 of the Act.[3]

1. It might be thought surprising that the Act does not contain a definition of employer similar to that provided for by s 3 of the Long Service Leave Act 1987 that defines employer as including "one that takes over or otherwise acquires the business or part of the business of the other." In his dissenting judgment in SouthLink Pty Ltd v WorkCover Corporation[4], Kourakis J (as he then was) puts forward powerful reasons as to why it might be thought unfair that the successor to an employer who has closed its operation has no obligations in relation to providing suitable employment to the partially incapacitated workers of the former entity.
2. However, in the absence of a provision like that contained within the Long Service Leave Act, and having regard to the terms of s 28A of the Act, in my view, the Tribunal has no power to impose upon Carter Holt Harvey an obligation to provide Mr Crute with suitable employment. Accordingly, in my view, the Tribunal lacks the jurisdiction to deal with the issues that Mr Crute wishes to agitate. I therefore grant the application for summary relief.

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.

[1] [2005] HCA 9 at para 48

[2] See, s 72C(2)(g) and Kennedy Cleaning Services v WorkCover [1993] SASC 387 and SouthLink v WorkCover [2009] SASC 175

[3] Section 119 provides: "Any agreement or arrangement entered into without the consent of the Corporation that purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect."

[4] [2009] SASC 175 at para 307 and 8