WCRA: “usually works” and “usually based”

 

Ferguson v WorkCover Queensland [2013] QSC 78

 

JUDGE: Applegarth J
ORDER: The application is dismissed.
CATCHWORDS: WORKERS’ COMPENSATION – INSURANCE AND LEVIES – LIABILITY OF INSURERS AND STATUTORY AUTHORITIES – OTHER MATTERS – where applicant employed as a delivery driver – where deliveries made from employer’s warehouse in Tweed Heads – where applicant delivers stock in Queensland and in New South Wales – where majority of applicant’s deliveries made in Queensland– where applicant injured during employment – whether applicant’s employment connected with Queensland for the purpose of s 113 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether applicant’s employment connected with New South Wales for the purpose of s 155 of the Workers’ Compensation Act 1987 (NSW) – whether applicant “usually works” in New South Wales as well as in Queensland – whether applicant “usually based” in Queensland or in New South Wales

 

Conclusion about the meaning of “usually works”

[32] The authorities which I have discussed apply the ordinary meaning of “usually” in its statutory context and conclude that the expression “usually works” means the place where the worker habitually or customarily works, or works in a regular manner. The determination of the State in which the worker “usually works” in that employment is not determined by deciding the State in which the worker spends the majority of his or her work time. The time spent in any particular State is still relevant. It is possible that a worker usually works in more than one State. The subsection does not involve a mathematical test. There is no fixed percentage of time spent working, above which a worker is taken to usually work in a State. It is possible to imagine clear cases in which the worker’s presence in a State is fortuitous, fleeting, uncommon or sufficiently unusual that one can easily conclude that the worker does not usually work in the relevant employment in that State. Other cases may be more finely balanced.

[33] The relevant provisions make specific provision to not regard “any temporary arrangement under which the worker works in a State for a period of not longer than six months” in deciding whether a worker usually works in a State. [26] Leaving aside such a temporary arrangement,[27] an occasional, even regular attendance in another State for training or attendance at a meeting may not constitute a sufficient connection.[28] In such a case the worker’s occasional presence in a State for work-related purposes may mean that he or she does not “usually work” in that State.

[34] The authorities illustrate that the determination of whether there is a State in which the worker “usually works” in that employment depends upon the circumstances of the particular employment. The fact that a worker’s time in employment is predominantly spent in one State does not necessarily mean that the State is the only State in which the worker “usually works”. The worker will usually work in more than one State if the worker habitually or customarily works in a second State. In such a case there will be no one State identified as being “the State in which the worker usually works in that employment” and the inquiry will turn to determining the State in which the worker is “usually based” for the purposes of that employment.

The meaning of “usually based”

[35] The term “usually based” was considered in Tamboritha Consultants Pty Ltd v Knight.[29] Commissioner Herron referred to the Shorter Oxford English Dictionary definition of “base” as a “town, camp, harbour, airfield, etc., from which (esp. military) operations are conducted and where stores and supporting facilities are concentrated; a centre of operations, a headquarters.”[30]

[36] The test is where the worker is usually based “for the purposes of that employment”, and this may not be the same place in which a majority of the worker’s time is spent each day. I respectfully agree with the statement in Martin v R G Hibbens Pty Ltd that where “a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so.”[31] I also agree with the other observations in that case, which I have quoted in [29] above, about the factors that may be taken into account in considering where a worker is usually based. I add that the place in which the worker’s employer is based may not be the same place in which the worker is based for the purposes of that employment. The place in which the employer chooses to base certain operations for the purpose of administering the contract of employment, for example, for administering payroll, may have little to do with the place at which the employee is based for the purposes of that employment. The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.

[37] In Avon Products Pty Ltd v Falls the Court of Appeal contemplated that it might be said that while working in her sales district in the ACT, the respondent’s vehicle was her base. [32] The Court continued:

“What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate.”[33]

[38] The authorities which have been required to consider the meaning of “usually based” in the same or similar statutory contexts have adopted the ordinary meaning of “usually” and “base”. I agree with this approach. The determination in those cases of the factual question of where a worker was usually based for the purposes of his or her employment was dependent on the facts of the case, and little is to be gained by detailing those matters.

[39] In the facts of the present case, the place at which the applicant started and finished work each day has an obvious relevance. So too is the place to which he returned to collect products, and the place at which the vehicle he used for the purposes of his employment was based. The place at which he planned his daily runs and the place at which he received directions about the work he was to undertake by way of delivering products also are relevant in determining where he was “usually based”. The place at which he worked whilst awaiting delivery jobs is also relevant in determining where he was “usually based”. Whilst regard must be had to these and other facts, none may be decisive in determining where the applicant was “usually based”.

[40] It may be inappropriate to place undue weight upon the place at which the worker starts and finishes each working day. During argument I ventured the hypothetical example of a taxi driver who collects a cab from his employer’s yard just inside New South Wales and then spends almost 12 hours in providing taxi services on the Gold Coast, following which he returns the cab to the yard where it is collected by a new driver who commences another 12 hour shift, driving the licensed taxi in Queensland. In such a case the worker spends 10 minutes out of each 12 hour shift in New South Wales, being the State in which his work starts and finishes each day. He collects the vehicle in New South Wales and returns it there. But in such a case the worker might not be “usually based” in New South Wales for the purpose of his employment as a taxi driver. His vehicle may be his base or he may have no base or at least, no usual base. In other cases, for example an airline pilot or a bus driver, the organisation of their employment and their own or their employer’s description of their base may permit a conclusion to be drawn that there is a State in which the worker is “usually based for the purpose of that employment”. Hanns v Greyhound Pioneer Australia Ltd is such a case in which it was common ground that the worker’s “base” was Canberra.

[41] In such a case, the one place in which the worker is “based” for the purpose of employment may be a place at which he or she spends a fairly small percentage of a normal working day.

[42] The statute contemplates that there may be cases in which there is no State or no one State in which the worker is usually based for the purposes of his or her employment. In that event, the cascading test requires consideration of the State in which the employer’s principal place of business in Australia is located.

[43] Depending upon the facts of a particular case, a worker may have no “base” for the purpose of his or her employment, even in a case in which he or she starts and finishes work each day in the same place. If, however, a base or bases are identified, then the question turns to whether a particular base is the place at which the worker is “usually based” for the purpose of that employment. The requirement that the worker is “usually” based involves consideration of whether the worker is customarily, commonly or habitually based in that place.

 

 

 

David Cormack – Brisbane Barrister

 

 

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