Pursuant to section 31A of the Workers Rehabilitation and Compensation Act 1988 (Tas) (the Act) the “State of connection” must be identified as Tasmania for a worker to be entitled to compensation under the Act. In the recent case of Zam Haulage Pty Ltd v T the Workers Rehabilitation and Compensation Tribunal (Tribunal) considered the series of tests set out in s31A(3) of the Act and determined how these tests apply in the context of a truck driver who regularly travelled between States for work.
The worker was a long haul truck driver who injured his knee in the course of his employment whilst in NSW. He lived in Victoria. The employer’s principal place of business was in Spreyton, Tasmania. The employer disputed the payment of compensation on the basis that Tasmania was not the worker’s State of connection. The Tribunal was then asked to determine the State of connection under s31C(2) of the Act.
Relevant factors considered by the tribunal when considering the State of connection
The “cascading” tests used to determine the State of connection are set out in s31A(3)(a) of the Act:
- Firstly, where the worker usually works in the employment;
- Secondly, if no State is determined to be where the worker usually works, then the State where the worker is usually based for the purposes of the employment; and
- Thirdly, if no State is determined to be where the worker usually works or where the worker is usually based, then the State where the employer’s principal place of business in Australia is located.
In considering where a worker “usually works” the Tribunal is to have regard to the worker’s work history over the preceding 12 months, proposed future working arrangements, the intentions of the worker and employer, and any period that a worker worked in a State or was in a State for the purposes of employment (s31A(6)(a)).
The Tribunal noted that the worker in this case only performed work in QLD, SA and TAS in certain circumstances, so therefore these States could not satisfy the first limb of the test for the State of connection. There was sufficient evidence that the worker regularly worked in NSW and VIC. The Tribunal could not distinguish these two States for the purposes of the first test, and therefore a single State of connection could not be ascertained.
The Tribunal then considered where the worker was usually based for the purposes of the employment. The Tribunal had regard to the following factors before determining Victoria was the State of connection:
- The worker was a resident of Victoria and the worker could not have performed the work required by his employer if he lived elsewhere. Practically it was an implied term of his employment contract that he was to reside in Victoria;
- The employer’s business involves transport of goods via Port Melbourne;
- The worker usually commenced work in Victoria and would always return to Victoria after completing the duties of his employment;
- The worker was paid on the basis that the starting point for calculating wages was when he arrived at Tottenham, in Victoria, where the employer has a depot;
- Both the employer and the worker considered the worker was based in Victoria; and
- The worker was not required to attend a certain place to receive instructions or payment. He would receive both electronically.
In arriving at that determination, the Chief Commissioner of the Tribunal, Robert Webster, noted the following legal principles in applying the State of connection tests:
- The terms of the contract of employment should always be taken into account;
- The term “usually works” in s31A(3)(a) is not synonymous with where the worker “works for the majority of the time”;
- The fact a worker’s time is predominantly spent in one State does not necessarily mean that State is the only State in which the worker “usually works”. The worker will usually work in more than one State if she/he habitually or customarily works in a second State. In such cases there will be no one State identified as the State where the worker usually works;
- The use of the term “usually based” in s31A(3)(b) suggests it has a different meaning to the term “usually works” in s31A(3)(a); and
- The type of matters contemplated by the expression “usually based for the purposes of the employment” referred to in s31A(3)(b) includes the work location specified in a contract of employment, the location a worker routinely attends to receive directions or collect materials or equipment in relation to the works, the location the worker reports to in relation to the work and the location from which his wages are paid.
Take away tip
Employers should ensure contracts of employment make clear what the intended State of connection is. To ensure there is no ambiguity as to jurisdiction if a claim for compensation is made, an employer should consider the above points and take appropriate action. For example: ensuring the calculation of wages begins in the intended State of connection; clarifying within a contract the intended State of connection; and if the worker is required to attend any particular place to gain instructions or be paid, ensuring that place is located within the intended State of connection.
This article was written by Luke Taylor, Partner and Daniella Phillips, Solicitor.