Covill v WorkCover Queensland

In this significant workers’ compensation matter, Applegarth J considered the interpretation of s 113 Workers’ Compensation and Rehabilitation Act 2003, and how it would apply to a person who worked casually for the same employer on a number of postings around Australia. Ultimately, his Honour found that the worker’s employment was connected with Queensland.

Applegarth J

17 August 2022

The applicant worked as a chef for Atlas People Pty Ltd (“Atlas”), a company which employs people in the hospitality industry and gives them short or long-term postings with its clients, which are around Australia. [1]–[2]. The applicant undertook two postings with Atlas, first at Batemans Bay in New South Wales, and then at Daly Waters in the Northern Territory. [4]. In December 2019, while working at Daly Waters, the applicant sustained an injury in the course of her employment. [5]. The respondent, WorkCover Queensland (“WorkCover”) initially accepted her application for compensation, but then denied her common law claims on the ground that she was not entitled to compensation under the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) as she was working outside Queensland at the time of her injuries. [6]–[7].

The applicant brought an application in the Supreme Court, seeking a declaration that her employment with Atlas was “connected with” Queensland, as defined in s 113 WCRA. Under s 113(1) WCRA, compensation under the WCRA is only payable “in relation to employment that is connected with this State”. [30]. Under s 113(2), compensation may still be payable, notwithstanding that the worker was outside Queensland when the injury occurred. [30]. Section 113(3), meanwhile, provides a cascading series of tests for determining which State a worker’s employment will be connected with: [7]

(3) A worker’s employment is connected with—

(a) the State in which the worker usually works in that employment; or

(b) 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

(c) if no State or no 1 State is identified in paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

Justice Applegarth observed that this provision focuses on the employment, as opposed to the precise contract which the worker was working under at the time of injury. [8]. This shift in focus to the employment, rather than merely the contract, means that if a worker is employed under successive contracts for the same employer, they will all be relevant to the application of s 113(3) WCRA. [8]–[9]. Further, s 113(3) admits of the possibility that a worker may neither usually work, nor usually be based, in a particular State for the purposes of their employment. [10].

As to determining when a worker “usually works” in a State, Applegarth J identified that this refers to the “place where the worker habitually or customarily works or works in a regular manner”. [31]. This is not necessarily the State where the employee spends the majority of their time, although that may be a relevant factor. [31]–[32]. Section 113(6) WCRA further requires that, in determining whether a worker “usually works” in a State, regard “must be had to the worker’s work history with the employer and the intention of the worker and employer”. [33]. Applegarth J took “intention” to mean a mutual or shared intention of both the worker and the employer. [33]. Similarly, his Honour viewed “work history” as being unbounded by time, meaning that, for longer employment relationships, decision-makers could have regard to patterns of work. [35]–[36].

Notably, his Honour found that s 113(6) does not provide an exhaustive list of factors to consider; other factors such as the expected duration of a contract and the probability of the worker being offered future work by the employer are all potentially relevant considerations. [34]. Justice Applegarth also warned against unduly focusing on any single contract, as past contracts and even anticipated future contracts may be relevant to determining a worker’s work history with their employer. [40]–[41]. Further, casual workers may be employed under a number of discrete contracts, rather than just one contract. [55]. Ultimately, his Honour concluded that the “location at which the employee was working at the time of her injury and for the period that immediately preceded it, and the terms of her contract, are relevant to determining the ‘employment’… However, they cannot be decisive”. [58].

Applying these principles to the instant case, Applegarth J noted that the applicant had been employed by Atlas, which was based in South-East Queensland, in both New South Wales and the Northern Territory. [68]. Her existing contract would have ended shortly after her injury, and there was a reasonable likelihood that she would have further assignments in other parts of Australia. [69]. Accordingly, his Honour found that the applicant was not usually employed in Queensland, or in any other State or Territory. [72]–[74]. Similarly, she was not “usually based” in any one State. [75]–[76]. Accordingly, his Honour turned to s 113(3)(c) WCRA, and found that Atlas’ principal place of business was in Queensland. [77].

In the event, Applegarth J was satisfied that, by virtue of s 113(3)(c) WCRA, the applicant’s employment is connected with Queensland, and so made a declaration sought by the applicant. [78]–[80].

M Paterson