State of connection test – workers’ compensation

The plaintiff, a chef, commenced employment with a Brisbane-based company that secured work for its employees in different parts of Australia – the incentive to join being that workers could travel and earn an income.

The plaintiff joined the company, and her first assignment was in New South Wales on a temporary basis. Once this concluded she was then placed to work in the Northern Territory (NT) on a temporary basis.

Although the plaintiff’s contract of employment said that any job assignments were a once-off with no guarantee of continued work, there was an expectation through verbal talks and emails between the plaintiff and the employer that the plaintiff would continue to be offered work in various states – on an ongoing basis – if she did well.

The plaintiff sustained injury when she was working in the NT. There was no evidence that the plaintiff did not do well before she was injured. But for the injury, it was likely that the plaintiff would have moved on from the NT shortly thereafter and accepted work from the employer in a different location.

The plaintiff was accepted for a Queensland workers’ compensation statutory claim, although when she elected to pursue damages against her employer, WorkCover argued that the plaintiff’s employment was not connected to Queensland pursuant to the ‘state of connection’ test, under s113 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA).

WorkCover argued that the plaintiff’s employment the purposes of s113(3)(a) was the ‘discrete independent employment’, being the stint in the NT, and placed great reliance on the written employment terms.

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Decision

The application was granted – the worker’s employment was connected to Queensland.

Ratio

The court held that when deciding the state of connection test, primary regard must be had to the conceptual ‘employment relationship’ between the plaintiff and employer (that is, the entirety of an employee’s relationship with an employer), and not just the specific subject ‘contract of employment’.

For the relevant tests under s113, regard must be had to:

1. (s113(3)(a) – ‘usually works’ test): between the plaintiff and employer, any work history, verbal or written representations made, work performed under successive separate contracts of employment, and the intention of each party with respect to any expectation of future work, and which state/territory this would be in
2. (s113(3)(b) – ‘usually based’ test): incidences such as the location the contract was made, which laws apply to the contact, where the worker is paid, contacted or issued directions from.

When considering the global employment relationship between the plaintiff and employer, it was held that because this plaintiff worked in multiple states/territories for the employer (and there was an expectation – and reasonable likelihood – the plaintiff would continue working for the employer in multiple states/territories into the future), and she did not usually work nor was she usually based in any one state, her employment most closely connected to Queensland as that is where the employer was located.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, James Leggo, is an Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.