Background

The Appellant, Stratford North Pty Ltd is a transport company based in the Northern Territory. In or around June 2020, the Second Respondent commenced employment with the Appellant. It was the parties’ intention that the Second Respondent would transport demountable huts from Brisbane to the Granit gold mines in the Northern Territory. The Second Respondent spent four weeks in the Northern Territory at the commencement of his employment, before beginning to drive  to collect the huts from Brisbane and deliver them to the mines in the Northern Territory.  

In mid-July 2020, due to COVID-19 related interstate travel restrictions, an arrangement was adopted whereby the Second Respondent drove the huts from Brisbane to the Northern Territory border, with another driving transporting the huts from there to the mine sites. Following the completion of the huts job, the Second Respondent continued working for the Appellant as an interstate truck driver.  

The Second Respondent made a claim for compensation on or about 6 April 2021 for an injury said to have occurred on 15 March 2021. This claim was accepted by WorkCover Queensland and later affirmed by the First Respondent.  

Stratford North’s Employment Background in Workers’ Compensation Case

As identified by the commission, the question to be determined in the appeal was whether the Second Respondent’s employment was connected to the State of Queensland, as required by s 113 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the Act’). Section 113 of the Act relevantly provides that: –  

113 Employment must be connected with State

  1. Compensation under this Act is only payable in relation to employment that is connected with this State. 
  2. The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State. 
  3. A worker’s employment is connected with –  

  • the State in which the worker usually works in that employment; or 
  • if no State or no 1 State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or 
  • if no State or no 1 State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located. 

Submissions of the Parties

By the Appellant’s calculation, between July 2020 and November 2020, the Second Respondent spent sixty (60) days in Queensland, forty-one (41) days in Northern Territory, five (5) days in South Australia, and two (2) days in New South Wales. It submitted that regardless of the precise number of workdays spent in each State, the Second Respondent usually worked across mainland Australia for the period during and after the hut jobs, meaning that he did not have a single State in which he usually worked.  

The Appellant further submitted that the Second Respondent was “usually based” in the Northern Territory, relying on factors such as the location from where the Second Respondent was paid and where the Appellant was based, being Northern Territory, as well as the Second Respondent’s national driver work diary recording that he was based in the Northern Territory.  

The Respondents disagreed with the Appellant’s calculation of the location of the Appellant’s working days, submitting that a narrow period of time had been assessed, to the Appellant’s benefit. Adopting a wider sample period, which resulted in the Second Respondent spending 110 days in Queensland and forty-six (46) in the Northern Territory, the Respondents submitted that Queensland was the sole State in which the Second Respondent worked “habitually or customarily” or “in a regular manner”.  

As to the second limb of s 113 of the Act, the Respondents submitted that the Second Respondent was “usually based” in Queensland, relying on factors such as the Second Respondent’s maintenance of a residential address in Queensland, as well as the Second Respondent’s truck being parked in Queensland when not in use.  

Decision

The Commission considered the “cascading test” of s 113 of the Act.  

In its consideration of s 113(3)(a), the Commission referenced Ferguson v WorkCover Queensland [2019] QDC 177, which is authority for the premise that whilst the time spent by a worker in each state is relevant, an assessment of where that worker “usually works” should not be a mathematical test. The Commission opined that the evidence did not support a conclusion that the Second Respondent worked “habitually or customarily” or “in a regular manner” in either the Northern Territory or Queensland, or any other state.  

The Commission then turned to consider s 113(3)(b) of the Act. In this regard, the Commission was satisfied that the Second Respondent was “usually based” in Queensland on the basis that he was customarily, commonly or habitually based in that State for the purposes of his employment.” Of relevance to the Commission was that whilst the Second Respondent received instructions from the Northern Territory, he did not have to attend that Territory to obtain materials, collect equipment, or have his vehicle serviced or maintained. Further, the Commission was satisfied that whilst the Second Respondent attended the Northern Territory on a number of occasions, he spent significantly more time in Queensland. As asserted by the Commission, the Second Respondent’s employment “took him to other States, but he was commonly based in Queensland for the purposes of his employment.” 

Being satisfied that the Second Respondent had demonstrated his connection with Queensland, as required by s 113(3)(b), the Commission found in favour of the Respondents, dismissing the Appellant’s appeal.  

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