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Supreme Court of the ACT |
Last Updated: 26 October 2009
AVON PRODUCTS PTY LTD v MAGRIT FALLS
[2009] ACTSC
141 (19 October 2009)
APPEAL – appeal from the Magistrates Court – appeal
against the determination of the State or Territory of connection pursuant
to
the Workers Compensation Act 1951 (ACT) – appeal
dismissed
WORKERS COMPENSATION – determination of appropriate
state for workers compensation claim – “State or Territory of
connection”
– “relevant place” of employment –
“usually works” – worker’s “base”
–
whether worker is customarily or routinely required to work in more than one
State or Territory – injury occurred outside
of the Australian Capital
Territory (ACT) – worker only required to perform duties in the ACT
– the ACT is the state
of connection
Workers Compensation Act 1951 (ACT), Part 4.2A
Workers Compensation
Amendment Bill 2003 (No 2) (ACT)
Explanatory Statement, Workers
Compensation Amendment Bill 2003 (No 2) (ACT)
Australian Capital
Territory Legislative Assembly, Ministers Presentation Speech, 21
November 1996
Michael Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 (8
February 2006)
Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78
(30 May 2008)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 26 of 2009
Judge: Higgins CJ
Supreme Court of the ACT
Date: 19 October 2009
IN THE SUPREME COURT OF THE )
) No. SCA 26 of
2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: AVON PRODUCTS PTY LTD
Appellant
AND: MAGRIT FALLS
Respondent
ORDER
Judge: Higgins CJ
Date: 19 October 2009
Place: Canberra
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
1. This is an appeal from a decision of Special Magistrate Cush of 11 February
2009. His Honour, on the application of the appellant
employer, determined that
this Territory is the appropriate State or Territory in respect of a claim made
by the respondent worker
for compensation arising out of an injury allegedly
suffered by the worker between May 2007 and 28 March 2008. The nature of the
injury was “mental injury” sustained as a result of
“harassing, bullying and intimidating behaviour of supervisor”.
The
application for arbitration was made by the worker on 20 August 2008. The
answer of the employer, dated 6 November 2008, raised
an issue as to whether the
Australian Capital Territory (ACT) was the relevant State of connection pursuant
to s 36A to 36D of the Workers Compensation Act 1951 (ACT) (the Act). The
employer contended that “Pursuant to Section 36B(3)(b) and (c); being that
the applicant’s base for employment is Jerrabomberra New South Wales
(NSW), her direct manager’s
base for employment is Bargo NSW and
Avon’s registered office is in Sydney NSW” hence that the
“State of connection”
was NSW. The Territory or State of connection
is deemed to be the appropriate jurisdiction to determine a compensation
claim.
2. The legislative background, as his Honour noted, relevantly began
with amendments proposed by the Workers Compensation Amendment
Bill 2003 (No 2).
Those amendments were intended to provide greater certainty for employers
operating across State and Territory
borders to enable them to determine where
they need to insure in respect of each worker and to enable workers to identify
the jurisdiction
within which they should make a claim. However, the
explanatory statement warned that:
An employer with workers in different jurisdictions must still maintain coverage in each jurisdiction where the employer has workers.
3. The legislative provisions adopted in the ACT are in Part 4.2A of the Act. The central concept is the Territory or State of connection in relation to the employment of a worker. Under s 36A of the Act that means:
(a) The Territory or State with which the employment of the worker is connected, as determined under this part;
4. That determination is governed by s 36B of the Act which provides:
(1) Compensation under this Act is only payable if the ACT is the Territory or State of connection.
(2) The fact that a worker is outside the ACT when injured does not prevent compensation being payable under this Act if the ACT is the Territory or State of connection.
(3) A worker’s employment is connected with –
(a) the Territory or State where the worker usually works in the employment; or
(b) if no Territory or State, or no single Territory or State, is identified by paragraph (a) – the Territory or State where the worker is usually based for the purposes of the employment; or
(c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b) – the Territory or State where the employer’s principal place of business in Australia is located
(4) [Not relevant]
(5) If no Territory or State is identified for a worker by subsection (3) or (4), the worker’s employment is connected with the ACT if –
(a) the worker is in the ACT when injured; and
(b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia.
(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 previous 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) [not relevant]
Background facts
5. The worker’s employment history with the employer was not in contest.
She commenced employment with the employer on 24
November 1991. She was
employed as a sales manager, with responsibility for sellers of the
employer’s products in a defined
area comprising the ACT and some part of
NSW.
6. In about 1996 she changed her place of residence from Rivett ACT to
Jerrabomberra NSW. In about 2005, her area of responsibility
was altered so as
to be limited to the ACT only. That remained the situation until she ceased
work.
7. The worker’s affidavit, which was not relevantly disputed,
detailed her work practices as spending 8 – 10 hours daily
working in the
ACT. She was required also to do “book work” most of which was done
at home but some of which was done
whilst she was in the ACT. She answered to a
supervisor based in Bargo NSW and the employer was said to be
“situated”
at Brookvale NSW. It was not apparent whether that was a
base of operations or merely a registered office.
8. Clearly, over the 12
months prior to the termination of employment, the worker had performed all of
her income producing activity
in the ACT but performed a significant minority of
her duties, being clerical in nature, in NSW. But for the separation of the
worker
from the appellant’s employ, that would have continued. There was
no other “relevant place”.
9. His Honour, correctly in my view,
first examined the issue as to whether the worker “usually works” in
the ACT. In
considering that issue his Honour gave consideration to the only
aspect of her performance of her duties based in NSW, that is book
work
performed at home. He said:
[15] It is not in dispute that book work is part of her duties. It is a subsidiary part. The fact that she does it at her place of residence is essentially irrelevant. The book keeping could be done from her car in the ACT or elsewhere. It could be done anywhere. It does not require a specific “locus” per se. I am not aware that there is any direction to the worker by her employer that book work be done from her residence or be done in NSW. It is not a requirement of her employment that she live in NSW.
[16] The way the argument has been put, if the worker had moved her residence back to a suburb in the ACT 18 months ago, then there could be no argument the ACT was not the place where she usually works.
10. None of those factual conclusions was disputed. Nor, in my view, was any
other conclusion open on the evidence.
11. However, the employer contended
that the question as to where it required work to be done was irrelevant. The
Human Resources
(HR) manager of the appellant asserted that the worker was
“... required to work in both states to complete her duties and
she has no
usual place of work”. It is true that his Honour did not expressly refer
to that assertion but it was plain that
if it was put forward as contradictory
of the worker’s evidence, it would have to be rejected. In any event, it
was an opinion
rather than a factual statement.
12. Clearly, the worker was
“required” to do paper work. She did most of it in NSW. That was
adventitious. Had she
continued to reside at Rivett ACT it would have been done
there. The assertion that there was “no usual place” of work
was
not a matter for the HR manager to determine. His Honour was entitled to
disregard Ms Callaghan’s unsupported and unsupportable
assertions in
paragraph 16 of her affidavit.
13. It was, however, Mr Clyne’s
submission that the facts were that the worker “usually” worked in
both NSW and
the ACT. The time preponderance of ACT work was not relevant. Nor
was the fact that the primary or essential work for the employer’s
business was in the ACT. Nor was it relevant, he submitted, that the employer
did not direct where the book work was done. It was,
in fact, at least partly
done in the ACT but was, for the most part, done in NSW.
14. Thus, he
contended the next enquiry should have been as to where the worker was
“based”. If that could not be ascertained,
though it was submitted
that it was at her home in NSW, then the relevant criterion was that of the
employer’s principal place
of business which was, he submitted, also
NSW.
15. Clearly, the worker could be said “usually” to have worked on
behalf of the employer, both in the ACT and NSW. The
former being an essential
matter, the latter being adventitious.
16. The first question is whether only
one State or Territory is to be ascertained rather than more than one. It seems
to me from
the explanatory statement and from the form of s 36B of the Act, that
the intent is to identify one State or Territory as the “State
or
Territory of connection”. That is also a theme of the Minister’s
presentation speech of 21 November 1996.
17. The next question is whether it
is relevant that the worker is only required to perform duties in the ACT and,
indeed, that the
employer has no interest in, or even control over, the place
where the “book work” component of her duties was
performed.
18. Here the examples in the Explanatory Memorandum are not of
assistance. In example A (attending conference interstate) the absence
from ACT
is said to be “required” but is temporary, and, hence, the
interstate place is not to be regarded as a “usual”
place of work.
Example B (a courier driver) would have applied to the worker when her sales
district was an area both in NSW and
ACT. It assumes that the worker is
directed to work both in NSW and the ACT. The worker’s “base”
must then be
considered. In the example, workers reported to a Canberra office
for instructions and to collect their vans. That it was said,
was their
“base”. Hence the ACT would be the Territory of connection. There
is no equivalent “base” in
the current case.
19. Example C refers
to information consultants flown to various sites from time to time. The
workers are “routinely required”
to work at different and interstate
locations. Hence, they have no base, thus excluding s 36B(3)(b) of the Act. In
the example,
consideration would need to be given to s 36B(3)(c) of the
Act.
20. It is noteworthy that the examples focus on the area or/areas within
which the employer “requires” the worker to perform
work.
21. That notion was picked up by the worker’s submissions. Mr
Sharwood noted that the “intentions” of the parties
concerning the
place or places of work was expressly referred to as a relevant matter in s
36B(6)(a)(iii) of the Act.
22. Mr Clynes referred me to a decision of Gray J
in Michael Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 (8
February 2006).
23. In that case the worker was an interstate bus driver.
The employer was based at the Jolimont Centre, Canberra City, ACT. The
situation was similar to that envisaged by example B in the explanatory
memorandum for the current legislation.
24. The learned Magistrate, in that
case, had determined that the worker, who was injured in NSW, should be paid
compensation according
to the law of NSW. The employer’s insurer had
proposed to cease payments under the NSW scheme. The worker sought an ACT
award.
Section 7A of the Act governed whether the worker was, as it was then
described, “a worker of this Territory”. If he
was so defined
compensation was payable under the ACT scheme.
25. That definition had some
similarity to s 36B of the present legislation. It stated:
(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.
26. The learned Magistrate, in the first instance, found that the worker usually
carried out the work of the employment in NSW.
The appellant worker contended
that the fact that most of his travelling time was in NSW was not the
determining factor. His base
of operations was ACT so, he contended, s 7A(2)(b)
of the Act should apply.
27. It was clearly a purpose of that provision, as
his Honour’s reference to the explanatory presentation speech for those
provisions
made clear, that the rights of ACT workers, particularly with respect
to coverage for common law compensation rights should be preserved.
It was also
intended that the worker’s “home” jurisdiction should be
easily ascertained by the employer and by
the insurer engaged by that employer.
That was and remains necessary, of course, for purposes including the setting of
premiums.
It is a common purpose of that and these amendments that one
“home” jurisdiction be ascertainable for each worker.
28. It is
also apparent that it was intended that the “home” jurisdiction
should not alter by reason of an adventitious
circumstance such as place of
injury.
29. His Honour considered in that context, though not directly
applicable, the more recent amendments now in force pursuant to s 36B
of the
Act.
30. Only one jurisdiction had placed a figure on “usually”.
In South Australia (SA) it is legislatively defined as 10%
or more of the
worker’s time spent working in the jurisdiction. Thus even if a worker
spent only 11% of the time working in
a particular State, the worker would be
“usually employed” there.
31. His Honour analysed the meaning of
the term “usually”. He concluded that it could not be equated with
“more
often than not”. Simply to quantify the respective times as a
matter of regular practice could have been done but was not.
32. The test, as
his Honour considered it to be, was expressed in the following passage:
[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.
33. The third alternative under s 7A(2) of the Act, as it then was, is, of
course, no longer relevant. However, the first two were
expressed in the same
form as the current provision. His Honour rejected a test that would enquire as
to the preponderance of working
time spent in any particular jurisdiction.
Nevertheless, in common with the explanatory statement in this case, reference
was made
to the worker being customarily or routinely “required” to
work in more than one Territory or State.
34. There is a decision of
Commissioner Herron in the District Court of Western Australia (WA), Tamboritha
Consultants Pty Ltd v Knight
[2008] WADC 78 (30 May 2008). The provisions being
construed in that case were virtually identical to the provisions of the Act
applicable to this
matter. The worker in that case was employed on a ship.
Hence, if the equivalent of s 36B(3) of the ACT Act, did not yield an answer,
the State or Territory of registration of the ship would satisfy the connection
test. The worker had boarded the ship on which he
was injured in Victoria. The
employer had a WA office and yard but its principal place of business was
registered with ASIC as Victoria.
35. The Commissioner noted that, in the
usual conduct of its business, the employers “required” the worker
to perform
his duties where and when directed. That would be on ships out of
the State or at the WA premises of the employer. The worker would
report for
duty in WA. An analysis of the previous 12 months’ employment history
revealed that he worked 74.5% of his time
on duty in WA, 20.9% in Victoria and
was working out of Australia for 4.6% of his time.
36. The Commissioner
accepted, and I consider correctly, that, although the WA equivalent of s
36B(6)(i) of the Act referred only
to the previous 12 months employment history,
all of that history was relevant, particularly if considering s 36B(6)(b) of the
Act
(temporary employment not more than 6 months in duration in a State or
Territory).
37. Each engagement of the worker, the Commissioner found, was a
separate arrangement in relation to a particular task. Thus no
“usual”
place could be identified simply from time spent in or out
of WA.
38. The phrase “usually based” was then considered. The
worker commenced and concluded each engagement in WA. However,
there was no
specific location which the worker routinely attended to receive instructions or
to collect materials or equipment.
39. That, of course, contrasts with the
worker’s situation in Michael Hanns v Greyhound Pioneer Australia Ltd
(supra). The
Commissioner noted that the worker was not, therefore,
“based” in WA “for the purposes of his employment”.
That was simply where he resided even though he might receive instructions at
his residence by virtue of his presence there. However,
because each contract
started and finished in WA and he was paid from the premises of the employer in
WA, he could be said to be
“usually based” in WA, though the
adventitious circumstance of his residence being there did not make it a
“usual
base”.
40. It was not considered that the fact the
registered principal place of business was Victoria was determinative of the
principal
place at which the employer actually conducted its business. There
might, in the case of a nationally operating company, be no such
place.
41. There was in the instant case, no evidence of what activities the
employer performed at its registered office in Victoria. The
business to which
the worker was connected was that principally conducted in WA.
42. Hence WA
was accepted as the State of connection.
Usually Works – s 36B(3)(i) of the Act
43. I accept that the test for identifying where the worker “usually
works” is not a merely mathematical exercise. Thus,
if this worker had
been employed to train, supervise and motivate a sales force not only in the ACT
but also in NSW, as was the case
up to 2006, there would be no argument that
would support a conclusion that s 36B(3)(a) of the Act yielded a connection to
the ACT,
even if the work required to be done in NSW was only a minority of that
work.
44. However, since that time, the employer has confined the area for
the performance of the worker’s duties to the ACT.
45. It is the case
that the employer requires the worker to complete paperwork, though whether she
did it from home, in her car or
at some other place was a matter of indifference
to the employer and at the worker’s discretion. There was no evidence
that
the worker was required to do anything in NSW.
46. No doubt the worker
could also have spent time at home planning her activities. That would be
work-related but clearly not a
relevant matter to determine where the worker
usually worked, that is, engaged herself on the employer’s
business.
47. The employer, according to Ms Callaghan at paragraphs 8 and 9
of her affidavit, required the worker to:
... recruit, train and motivate sellers, run sales meetings, run promotions in shopping centres (although she did not always attend these) and make home visits and training calls.
48. That was clearly related to the marketing by the employer of its product.
The worker could only perform those functions in the
ACT. The paperwork and
bookwork could be performed anywhere.
49. If the employer had required the
book work to be done at its premises then it would know the State or Territory
with which that
work was connected and could make a decision to take out a
policy of insurance accordingly. That decision would be rendered nugatory
in
the present case if the worker decided to change her work practices so as to
complete paperwork as she travelled in the ACT rather
than taking it home or had
changed her place of residence without notice to the employer in the ACT. There
could then have been
no factual basis for concluding that the worker
“usually worked” in NSW.
50. It seems to me, therefore, that his
Honour was right to apply as the test for the place where the worker usually
works in the
course of her employment as that place or those places at which the
worker was expressly or by necessary implication contracted to
work. That is,
required so to work by her contract of employment with the employer.
51. In
this case it was correctly concluded that that place was the ACT.
52. If I had concluded that the usual place or places where the worker usually
worked did not yield the ACT as the Territory or State
of connection, I do not
consider that s 36B(3)(b) would have yielded an answer.
53. I agree with
Commissioner Herron as to the approach to the term “usually based”.
That is, to consider the answer,
if any, yielded by (at [83] supra) a
consideration of:
54. There was no evidence as to any of those matters, though it seems likely there was no place corresponding with the second and third dot points and none of them could have been equated with the worker’s place of residence.
The employer’s principal place of business
55. Assuming s 36B(3)(c) of the Act was applicable, the mere assertion that the employer corporation is situated at Brookvale NSW would not answer the question as to its “principal place of business”, though it is likely that it would be NSW. More information would be necessary to detail the actual location of the business activities of the employer. As Commissioner Herron noted, a national employer might have no “principal” place of business.
56. Having concluded that his Honour was right to find that the ACT was the Territory or State of connection, it follows that the appeal will be dismissed with costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 19 October 2009
Counsel for the Appellant: Mr R Clynes
Solicitor for the Appellant: Sparke
Helmore
Counsel for the Respondent: Mr W Sharwood
Solicitor for the
Respondent: Pamela Coward Higgins
Date of hearing: 31 August 2009
Date of
judgment: 1 9 October 2009
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