Proceedings regarding the State or Territory of connection are relatively common in the Australian Capital Territory due to the ACT’s proximity to New South Wales. Injured workers actively seek access to the ACT statutory workers compensation and common law damages regime as it is far more generous than the counterpart NSW system.

When assessing the State or Territory of connection, the cascading test under s.36B of the Workers Compensation Act 1951 (Act) requires consideration of the following factors, with the second and third factors only becoming relevant if those above it are not conclusive:

  • where the worker usually works
  • where the worker is usually based
  • the location of the employer’s principal place of business.

When deciding where the worker usually works, the Act states that regard must be had for the worker’s work history with the employer over the preceding 12 months, the worker’s proposed future working arrangements and the intentions of the worker and employer. An exception exists under s.36B for “temporary arrangements” which are not to be taken into account when examining work history.

The precise meaning of “temporary arrangements” has not previously been subject to judicial interpretation, and the lack of clarity in the section has long created uncertainty for both employers and workers.

Background

Gabriel Tapia, the appellant worker, commenced working for Woolworths Ltd in March 2012. The worker’s original contract stated that he would be based at the Canberra Airport store but that he may be required to work at other locations from time to time. In fact he only worked at the Airport store under that contract.

In January 2013 the worker accepted a contract for a new position. This contract stated the worker would be based at Yennora in NSW, however the role involved participation in a two year program with a number of rotations in NSW and the ACT. Between February and April 2013, when the worker was injured, he worked in 5 different sections at stores in the ACT and Queanbeyan, NSW in two week periods.

The worker suffered an injury to his back during a rotation at Queanbeyan and submitted a workers’ compensation claim which was initially accepted by the NSW insurer. He continued working and completed a number of rotations at the Gungahlin store. From July 2013 to November 2014 the worker completed 9 further rotations at different locations in the ACT and NSW lasting between one to two months each.

At the end of the program in February 2015 the worker was offered a new position at a store in Canberra, which he accepted. Under cross-examination the worker admitted that although it was his preference to work in the ACT upon completion of the program, he could have been offered work at any store in Australia.

Chief Magistrate Walker found that the worker usually worked in both the ACT and NSW for the purposes of s.36B(3)(a). She made that decision notwithstanding that she accepted the worker’s submission that the 6 week period between February and April 2013 when the worker worked at various stores was a ‘temporary arrangement’ under s.36B(6)(b) and should be excluded from consideration.

Appeal

The worker submitted that Chief Magistrate Walker was correct in determining that the period in early 2013 was a temporary arrangement, however her conclusion that he was a NSW worker was incorrect. This was based on the prior 12 month period when the worker worked exclusively in the ACT, and his intentions to work in the ACT after the completion of the program.

The respondent contended that the new contract in February 2013 was a separate employment arrangement from the previous agreement. The subsequent period was therefore not a ‘temporary arrangement’ but was in fact the nature of the role. Accordingly, the Chief Magistrate should have taken that period into account when determining where the worker usually worked. This would result in a finding that the “usually worked” limb of the test was inconclusive.

Decision

In Tapia v Woolworths Limited [2016] ACTSC 129 Associate Justice Mossop disallowed the appeal with costs.

In coming to that decision, he found that the worker’s and the employer’s future intentions and the worker’s proposed working arrangements were not conclusive. The worker’s work history, and whether 6 weeks preceding the injury were a “temporary arrangement”, were therefore of key importance.

His Honour examined the legislative history of “temporary arrangement” under prior iterations of the Act and concluded that “the appropriate approach is to work out where the worker usually works having regard to all the facts. Having done that, the temporary arrangements exclusion can be applied if the place or places where the worker usually works has been affected by a temporary arrangement.”

In this case, Associate Justice Mossop had particular regard to the new contract in 2013 and the nature of the role. The contract stated the worker would start work at Yennora and then be placed in different stores at unspecified locations. The evidence also indicated that there was no intention that the worker would be placed in a particular state or territory. Accordingly, the postings were an inherent part of the role and were not “a temporary departure from an otherwise existing state of affairs”, and the period following the new contract in 2013 needed to be taken into account. On that basis, the Chief Magistrate was correct in determining that the “usually worked” limb did not determine the State or Territory of Connection.

In the absence of the new contract, and if the worker had simply returned to working at the Airport store after the 6 week period in NSW, then that period would have been a temporary arrangement and would not have been taken into account for the purposes of the test.

Implications

Parties involved in State or Territory of Connection disputes now have the benefit of judicial guidance as to what constitutes “temporary arrangement”. His Honour also confirmed that although the statutory test requires the Court to examine the 12 months prior to the injury, it is not “the only appropriate frame of reference”. The factual circumstances may dictate that, as in Tapia, a different time period is appropriate as a result of changes in contractual or employment conditions