…operation of s36B, Workers Compensation Act 1951 (ACT) – whether plaintiff ‘usually’ worked in ACT or NSW
The plaintiff commenced proceedings in 2018, seeking damages for a back injury suffered in the course of his work on 26 May 2015 whilst lifting formwork at a New South Wales (NSW) worksite.
His statement of claim asserted that the Australian Capital Territory (ACT) legislation applied. The defendant asserted that the NSW legislation applied.
To resolve the jurisdictional issue, the plaintiff sought declarations. At first instance, the plaintiff was successful before Elkaim J, with a finding that the plaintiff usually worked in ACT (and that the ACT legislation was to therefore apply) under the ‘first limb’ of the relevant statutory test.
The defendant successfully appealed, with the Court of Appeal finding that the plaintiff usually worked in both the ACT and NSW under the first limb of the relevant test; and leaving the applicable law undecided. This resulted in a further application before Elkaim J for further determinations.
The plaintiff was successful in establishing that his compensation claim was to be determined under ACT legislation.
Applying the reasoning of Mossop J in the related Court of Appeal decision (as to the correct test under the ACT legislation), Elkaim J:
- adopted the Court of Appeal’s finding that the plaintiff worked in both ACT and NSW (for the first limb of the applicable test) by considering where the plaintiff had worked in the 12 months preceding injury
- applied the further limbs of the applicable test in section 36B(7) of the ACT legislation, finding:
- the court could consider the whole of the plaintiff’s period of employment from 2009 to 2015 where the first limb of the test was inconclusive
- the words ‘usually based’ did not have to be a fixed place and could be a succession of construction sites where the plaintiff performed his work. This resulted in a finding that the plaintiff was usually expected to operate in the ACT and was therefore usually based there
- the plaintiff’s employment contract not stipulating a usual base was a neutral point between the parties
- the place from which the plaintiff routinely received his day-to-day instructions was via the supervisor at each construction site he worked at (which was predominantly ACT over the duration of employment)
- the place where the plaintiff attended to collect material for the purposes of his employment was again the various worksites he worked at (predominantly ACT)
- the place where the plaintiff reported for administrative, human resource and other issues related to his employment varied between states; and was therefore a neutral factor
- the neutral findings on two aspects of the section 36B(7) tests did not prevent an overall finding that the plaintiff was usually based in the ACT for the purposes of his employment.
As a result, his Honour’s overall finding was that the substantive law to be applied to the plaintiff’s claim for damages was that of the ACT.
If his Honour was wrong in his consideration of section 36B(7), consideration of the operation of the next limb in section 36B(8) – as to the defendant’s principal place of business – would also have been found to be the ACT; where the majority of the defendant’s work was, rather than based on the location of its head office (NSW).
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Stephen Hughes, is a Special Counsel. 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.