What does ‘usually’ usually mean?
March 27, 2013
Wadley v Ron Finemore Bulk Haulage Pty Limited  VSC 5
The largely uniform provisions in respect of jurisdiction for workers compensation claims provide for a three tiered approach in determining which territory or state a worker is connected to in terms of benefits and entitlement to common law damages. The three levels of the test are:
(a) The territory or state where the worker usually works in the employment
(b) If no territory or state, or no single territory or state, is identified by paragraph (a) – the territory or state where the worker is usually based for the purposes of the employment
(c) If no territory or state, or no single territory or state, is identified by paragraph (a) or (b), the territory or state where the employer’s principal place of business in Australia is located.
Regard must not be had to any temporary arrangement under which the worker works in a territory or state for a period of not longer than six months.
The leading authority which has emerged thus far in explaining the first tier of the test, as to single usual place of work, is the decision of Justice Gray of the Australian Capital Territory Supreme Court in Michael Hanns v Greyhound Pioneer Australia Limited  ACTSC 5.
That case is authority for the proposition that the first tier does not involve a quantitative or percentage analysis of time spent in each place so that the place where a worker spends most of their working hours should be regarded as their usual place of work. Justice Gray found that ‘usual’ should be interpreted in the sense of ‘customary’ or ‘habitual’. Where there are two usual places of work, even where one involves less work than the other, then the second tier of the test is invoked.
The ACT Court of Appeal looked at what is meant by the usual base for employment in Avon Products Pty Limited v Falls  ACTCA 21.
In that matter, the worker was responsible for an Avon district in the ACT, although she performed some of her administration work at the worker’s home in NSW. The employer provided a fax machine at home in NSW. However, that was not considered a base provided by the employer so as to invoke the second tier of the test. The claim was held to be a NSW claim with reference to the third tier of the test. That was where the principal place of business, and the head office, of the employer was located.
The interlocutory decision of Ellis v Weldcraft Engineering ACT Pty Ltd and Construction Control Holdings Pty Ltd  ACTSC 164 involved a labourer and apprentice boilermaker who was injured while working on a building site in the ACT in June 2005. He sued his then employer, a subcontractor on the site, and also the builder. He asserted in the statement of claim that at all material times he usually worked in the ACT. This was denied on behalf of the employer. The plaintiff filed an interlocutory application requesting a determination on that issue.
Master Harper found that the plaintiff usually worked in both the ACT and NSW, and was based at the employer’s premises in Queanbeyan, NSW, so NSW was the state of connection. The restrictive damages provisions in the Workers Compensation Act 1987 (NSW) therefore applied insofar as the claim against the employer, via the choice of law provisions. The law of the place of the tort (ACT law) would remain applicable in respect of the damages claim against the builder.
Even though there were factual discrepancies that could not be determined without a full trial, those discrepancies were held not to be determinative of the issue as to jurisdiction so as to prevent an interlocutory finding in that regard.
The most recent decision to look at the test is the Victorian Supreme Court decision of Wadley v Ron Finemore Bulk Haulage Pty Limited  VSC 102.
The plaintiff suffered serious injuries when he fell from the trailer of a B-Double rig on Australia Day 2007 in the course of his employment with the defendant. The accident occurred in Corowa, New South Wales. The plaintiff lived in Victoria and, on his account, was employed pursuant to a contract of employment in Victoria from the employer’s depot in Wodonga.
In an interlocutory decision, Wadley v Ron Finemore Bulk Haulage Pty Limited  VSC 5, Forrest J referred to the common law position as described in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. That is, that the law of the place of the tort determines the controversy between the parties. The question was then posed as to ‘where in substance did the cause of action accrue?’. Forrest J stated that the answer to that question would resolve the issue of which law was to be applied to the plaintiff’s claim for common law damages. However, section 129MA of the Accident Compensation Act 1985 (Vic) (‘the Act’) provides that if there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs whether or not a claim for damages in respect of the injury can be made; and if it can be made, the determination of the claim. This means that the law of the territory or state of connection will apply to the damages claim, regardless of where the cause of action accrued.
In any event, Forrest J made orders to the effect that it was appropriate the issue of employment connection be determined before the trial, so that the parties knew ‘precisely what law is to be applied to Mr Wadley’s claim prior to the trial commencing’.
The matter proceeded to hearing for that purpose before Williams J on 6 and 7 March 2013. It was noted that the employment connection test in section 80 of the Act was introduced in accordance with an inter-jurisdictional agreement, to introduce ‘a hierarchy’, which is uniform in affected States and Territories, and to have ‘certainty of location’ where there are two workplaces on either sides of a border.
The employer contended that, notwithstanding that payments of compensation had been made pursuant to the Victorian Act, it was in fact appropriately a NSW claim. The employer submitted that:
- The plaintiff usually worked in more than one state so the first tier does not apply
- The plaintiff was usually based in NSW.
The plaintiff on the other hand argued that he usually worked in Victoria and was based in Victoria.
Williams J referred to the decision in Greyhound v Hanns and found that ‘usually’ means ‘customarily’ ‘frequently’ or ‘regularly’, and does not involve a quantitative test. The plaintiff usually worked in both NSW and Victoria, including because he:
- Commenced and generally finished work at Corowa, NSW
- Obtained instructions from a supervisor at Corowa
- Spent between one and four hours of each shift loading and reloading his truck at Corowa
- Delivered his completed paperwork to Corowa to allow his remuneration to be calculated
- Went to the head office in Wodonga, Victoria to apply for his job, for training and to have his truck serviced, maintained and repaired on a relatively frequent basis, as well to consult his manager in relation to his job
- Spent many hours driving, sleeping and eating in Victoria during each 12-hour shift.
As such, the second tier of the test was required to be consulted.
As to the base for employment, the employer referred to the decision in Avon v Falls and argued that because a place was provided by the employer in NSW, NSW was the state of connection. The plaintiff argued that the premises in Victoria and the time spent in the truck in Victoria meant that he was usually based there and Victoria was the state of connection.
With reference to the dictionary meaning of ‘usually’, as applied to the first tier of the test, Williams J was again unable to identify one State as containing a base for employment. The plaintiff was ‘usually’ based in Corowa, at the Rivalea depot where he attended, and he was also ‘usually’ based at Wodonga, because he had been employed and trained there, reported there, and obtained resolution for any problems from his senior manager who was located there. He was also paid from there. The truck could also be described as a base, as it provided him with the mobile facilities required for the performance of his work, given its particular nature.
As he ‘usually’ worked and was ‘usually’ based in both Victoria and New South Wales, the plaintiff’s entitlement to compensation fell to be determined by the third tier of the test under sub-s80(3)(c). The employer’s principal place of business was in Victoria and Victoria was held to be the state of connection.
This recent decision is consistent with the previous interpretations of the territory or state of connection test in other jurisdictions.
Authored by Emma Reilly, Partner, Canberra.
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