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Do you employ workers in other states? If so, are they covered by your
Queensland workers’ compensation policy?
February 2015
Chrissy Leong Customer Services Manager WorkCover Queensland
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Scott Keft Partner
MacDonnells Law
Meet your presenters
Mike Ironside Customer Services
Manager WorkCover Queensland
Session summary Part 1 – From a legal perspective with Scott Keft The obligation to hold WorkCover insurance for interstate workers; Examples of court decisions The conduct of an interstate injury The applicable law – liability and quantum. Part 2 – From a WorkCover perspective with Mike Ironside What to expect when lodging a claim where Cross border Arrangements are
considered Conclusion Questions
Part 1 - Jurisdictional Issues
The obligation to hold
WorkCover insurance for interstate workers
Requirement to hold insurance
This potential issue arises when an employee of a company, partnership or sole trader which conducts its business in Queensland is injured interstate.
The issue is whether the entity was required to hold insurance under the Workers’ Compensation and Rehabilitation Act 2003 (the Act).
The section to consider is S113 of the Act.
Section 113 provides 1) Compensation under this Act is only payable in relation to employment that is
connected with this State.
2) The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to 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 1 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 1 State is identified by paragraph (a) or (b), the State in
which the employer’s principal place of business in Australia is located.
Section 113 provides
4) If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if-
a) The worker is in this State when the injury is sustained; and b)There is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
5) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the Employer and the intention of the worker and Employer. 6) However, 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.
continued…
NSW Legislation 9AA Liability for Compensation
1. Compensation under this Act is only payable in respect of employment that is connected with this State.
2. The fact that a worker is not outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
A worker’s employment is connected with: a) The State in which the worker usually works in that employment; 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.
NSW Legislation
5) If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if:
a) The worker is in this State when the injury happens, 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, regard must be had to the worker’s work history with the Employer and the intention of the worker and the Employer. However, 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.
Victoria, South Australia and Western Australia all have similar provisions
Continued…
NSW Legislation
The test is a cascading test a) “Usually works” b) “Usually based” c) Employers “principal place of business”
The tests are not applied together they are applied one after the other with the next test being applied only if the prior test fails to give an answer. Avon Products v Falls [2010] 5 ACTLR endorsed in Ferguson v WorkCover Queensland [2013] QSC.
Continued…
Interpreting “usually works” • Given its ordinary meaning. “In a usual or wonted manner, according to
customary established or frequent usage, as a rule”. Oxford Dictionary
• This is not simply where a person spends the majority of his time. It is not simply a mathematical exercise. Hanns v Greyhound Pioneer Australia Ltd [2006] 196 FLR. Tamboritha Consultants Pty Ltd v Knight [2008] 58 SR (WA)
• Rather it involves looking into the customary or regular places where the work is carried out. Hanns v Greyhound Pioneer Australia Ltd.
• When a worker is customarily or routinely required to carry out his work in more than one State, one enquires as to the worker’s base.
Guidelines to where a person usually works
• Look at the entire work history with that Employer.
• Look at whether the interstate work has only been for a period of less than 6 months 113(7) of the Act.
• What is the intention of the parties as to where the person works.
• Does the worker habitually work in more than one State during the course of his day or week’s employment.
Usually based Given its “ordinary meaning”. “Town, camp, harbour, airfield etc. from which (esp. military) operations are conducted and where stores and support facilities are concentrated, a centre of operations, a headquarters”. Oxford Dictionary
The factors which indicate where a worker is usually based include: The work location in the contract of employment; The location the worker routinely attends during the terms of employment to: The location where the worker reports in relation to the work.
— Receive directions; or — Collect materials; or — Collect equipment.
The location where the worker reports in relation to the work. The location where the wages are paid.
Ferguson v WorkCover Queensland
Principal place of business
This includes considering:
The registered address of the company
The principal place of business
The mailing address of the business.
Example 1 Ferguson v WorkCover Queensland The Claimant was employed in Tweed Heads as a warehouse manager and driver. He reported to work in NSW but the NSW office ran on QLD time, observed QLD public holidays and orders came from the QLD office. For the 6 months pre- accident he drove a delivery truck from the Tweed office and he believed 70% to 80% of his deliveries were in QLD. Outcome – Held
The Claimant usually worked in QLD and NSW as the number of deliveries in NSW was
significant.
The Claimant was based in NSW notwithstanding the NSW office was organised to follow the administration in QLD.
Example 2 A mining company is based in Queensland. It supplies workers to its mine site in NSW. The workers work only in NSW but fly home on a 7 on 7 off roster. Outcome – Held It would be held under (a) that the Claimant usually works in NSW. The time off is not relevant as it is not work.
Example 3
RHG Home Loans v Employers Mutual NSW & Ors [2011] QSC • The Claimant was employed by RAMS. He did his induction for 2 days in
Sydney then commenced working from the Brisbane office of RAMS. He went to an intensive conference in Sydney about 3 weeks after he commenced work. He was injured.
Outcome – Held It was held under (a) that the Claimant usually worked in Queensland
Example 4 Hanns v Greyhound Pioneer Australia • The Claimant was a casual bus driver for an interstate motor coach operator. The
Employer was based in Canberra at the Jollmont Centre. The Claimant carried out his duties as a bus driver using the Jollmont Centre as a base. He drove busses mostly from Canberra to Sydney but also Canberra to Melbourne. The Claimant at the time of the accident was for the first time ever driving a bus from Sydney to Brisbane. He has travelled to Sydney as a paid passenger on the bus to Sydney, collected the bus and commenced to drive to Brisbane. The accident occurred in NSW.
Outcome – Held The Judge held him to be a worker of NSW based on the time spent driving in NSW But this was appealed and was successful I suspect applying test (b) he would be based in Canberra
Example 5 The Claimant was employed by an aged care facility. The organisation was a registered business with its registered office in Queensland. The main office functions were in Queensland however they also had an office at Tweed Heads. The payroll, personnel files and banking was done from the Queensland office. The Claimant lived in NSW. The Claimant worked in the 12 months pre-accident 52% of the time in Queensland and 48% of the time in NSW. He was injured in NSW.
Outcome Under test (a) there would be no single state in which the Claimant usually worked.
Under test (b) the Claimant would be found to be usually based in Queensland.
Example 6 Tamboritha Consultants Pty Ltd v Knight [2008] WADC
Mr Knight was employed by TC as a remotely operated vehicle supervisor of an underwater vehicle. TC operated its business from Perth where its head office was. TC was however registered in Victoria and listed its principal place of business in Victoria. Mr Knight travelled from Perth to Melbourne and he then boarded a ship in Melbourne. The ship was to lay anchors and chains for an off shore storage and production facility. Knight was injured on board the ship when it caught fire. Knight was employed on a “job by job” basis in various states and overseas.
Outcome - The court held: Unable to determine whether Knight usually worked in WA or VIC. As each new contract for work commences and concludes in WA and each contract for work is
entered into in WA and he is paid from the WA office; Knight under (b) is usually based in WA.
Example 7 A long distance haulage driver drives between QLD, NSW and VIC. He collects items from each depot and delivers them. He spends most of his time in NSW where the majority of depots are but where he is required to travel to depends mostly on the items for delivering. He lives in NSW at Tweed Heads and he collects his truck to commence work either from the Tweed Heads office or the Southport office. Mostly it is collected from the Southport office, but it is far from exclusively at the Southport office. Head office for the company is QLD and its registered office is in QLD. The truck is serviced at the depots at each location in each State.
Outcome - It would be held that: The Claimant usually works in more than one state (a); He again is probably based in more than one state (b); He is Queensland based under (c)
The conduct of an interstate injury
Effect of QLD being determined as the state to which employment is connected: Obligation to hold WorkCover insurance in Queensland;
The injured worker has a right to claim WorkCover statutory benefits in Queensland;
WorkCover Queensland is required to indemnify in relation to the claim.
Queensland pre-court procedures: The Queensland pre-court procedures apply before a right to commence
proceedings against the Employer occurs: — S322 of the Act — S324 of the Act — S235 of the Act — S295 of the Act.
There is a difference of opinion on this point but I have required injured
workers to comply with the pre-court process.
The applicable law – liability and quantum The purpose of S113 of the Act and the mirror Acts in all other states is to determine:- To which state the employment attaches;
Which is the appropriate WorkCover insurer to respond; The pre-court procedures apply Proceedings can be instituted in the State/locality where the accident occurred The court procedure will be governed by the procedure of the state where the accident occurred
Continued…
The applicable law – liability and quantum
Liability will be:- Against the Employer determined in accordance with the law of Queensland; Against any other party in accordance with the law of that state. Quantum will be:- Against the Employer determined in accordance with the law of Queensland and
the limitations in the Act; Against any other party in accordance with the law of that state.
Part 2 – Cross Border Arrangements
Claim Determination – What you can
expect
Cross Border Arrangements • Many employers based in QLD have contracts to supply staff to other states, especially in a labour hire
setting.
• It is important at the time of determination and during wage declaration discussions to make sure the Worker is indeed a QLD worker. Many employers believe that if the worker lives in QLD, they will be deemed a QLD worker however this is incorrect.
• WorkCover will conduct a worker determination test for claims as they are lodged. It is important to ensure the person is a worker under section 11 of the Act, but also to ensure the worker’s employment is connected with state, that is, they are deemed a QLD worker.
• Each time a claim is lodged, the working arrangements will be investigated. Just because a worker on a similar contract was deemed a QLD worker for a previous claim, we still need to be sure each worker’s personal working history with your company is considered.
Cross Border Arrangements • In order to determine the state of connection, we must refer to Section 113 of the Act to determine if
the person is a QLD worker when they are working interstate.
• There is a 3 step test to be applied, this test is hierarchical, not alternative. This means that if the worker’s employment situation satisfies the first test, there is no need to progress or satisfy the next test.
Test (a) – the worker usually works in that employment; or
Test (b) – if test (a) is not clear, the state in which the worker is usually based for the
purposes of that employment; or
Test (c) – in cases where (a) or (b) is not clear, where the employer’s principal place of
business in Australia is located.
• The determination of the state of connection will not be affected by temporary work for a
period up to and including six months in another State/Territory. • If the temporary work continues past 6 months, the worker is not automatically excluded from
being considered a worker who usually works in that State. The intent of the extended temporary arrangement will need to be considered.
• WorkCover may ask questions in regards to the length of time a worker has been in you employment, the working arrangement in place and the intention of the worker and the employer. This is important in cases where the worker is injured whilst working in another state whilst on a specific contract, but the intention was to return to QLD at the completion of that contract.
More information Visit www.workcoverqld.com.au for more on: Cross Border Arrangements, click HERE
More information The webinar recording and presentation slides will be available at www.workcoverqld.com.au in the coming days. Take a look at our other webinar and event videos on our website to learn about similar topics.
