It is not an uncommon occurrence for employees to be required to perform their duties in multiple states, or a state other than the state of their initial employment. This concept is not unique to interstate circumstances alone as there are also occasions when an Australian based employee is directed to perform their duties abroad.
These employment situations can lead to particularly complex legal questions in the determining numerous elements with respect to workers’ compensation, employment and other statutory and/or common law claims.
To add to the complexity involved in these scenarios is the potential for differing and often conflicting legal frameworks and legislature between jurisdictions, be these interstate or international in nature.
Accordingly, this can lead to an extensive and costly endeavor in untangling and determining such issues, some of which may remain undetermined until considered directly by a Judge.
One such occurrence involving a common law workers’ compensation claim arose in the recent matter of Covill v WorkCover Queensland [2022] QSC 171, heard before Justice Applegarth in the Supreme Court of Queensland.
The matter involved a 25-year-old female chef employed by a company based in Queensland, which operated by placing employees in hospitality roles with clients in various location across Australia. Accordingly, whilst the injured worker was employed by a Queensland based employer, she initially was assigned to perform her duties in New South Wales, before being re-assigned to work in the Northern Territory, during which time she suffered a work related injury.
The injured worker lodged an application for compensation with WorkCover Queensland which was accepted and after a period, a Notice of Assessment was issued with an offer of lump sum compensation. The injured worked elected not to accept the offer and pursued a common law claim.
Upon service of the Notice of Claim for Damages, WorkCover Queensland refused to respond, submitting that she was not entitled to compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”). The primary contention was that her employment was not “connected with” Queensland, pursuant to section 113 of the WCRA.
The process of determining this connection pursuant to section 113(3) of the WCRA is summarised as follows:
The worker’s employment is connected with –
- The State the worker usually works in; or
- If no state or no single state identified by (a), the State the worker is usually based in for the purposes of employment; or
- If no state or no single state identified by (a) or (b), the State of the employer’s principal place of business.
As per the summary above, it is the consideration of the worker’s employment that is determinative, rather than any contract of employment.
One point considered by Justice Applegarth was the brief nature of the injured worker’s employment with the employer, noting that in circumstances of extended employment, it would likely be easier to discern an established pattern of work.
During the hearing, Counsel for WorkCover submitted that only the injured worker’s employment in the Northern Territory ought to be considered, as it was a contracted assignment, which they labelled a “discrete independent employment”, during which the worker only worked in the Northern Territory.
Counsel for the injured worker submitted it was the totality of the employment relationship, extending beyond simply the Northern Territory based assignment, that ought to be considered.
There were various other submissions raised and considered by both parties including but not limited to:
- The specifics of the employment contract;
- The “Conditions of Assignment” document;
- The casual nature of the worker’s employment;
- The fact the contract was entered into in Queensland; and
- The company’s principal place of business being in Queensland.
Justice Applegarth determined that the worker’s employment was connected to Queensland pursuant to section 113(3)(c) of the WCRA, on the basis that the first two limbs were not satisfied and that the employer’s principal place of business was located in Queensland.
Accordingly, a declaration was made that the worker’s employment as described in her Notice of Claim for Damages was “connected with” Queensland under section 113 of the WCRA. Thereby facilitating the continuance of her common law claim for damages against her employer here in Queensland.
While the complexity of this assessment is unique, the circumstance itself are not, particularly in areas such as South East Queensland, where employees, particularly those in service industries that require physical attendance on the client or their premises, necessitates Queensland based employees to often perform duties and/or undertake their employment duties in New South Wales.
Given the dynamic nature of employment here in Queensland, in Australia and even internationally, it is highly likely that determinations of this nature or of similar circumstances, will become more commonplace.
Workers’ compensation claims involving interstate and/or international employment situations are often complex, may require significant investigation and may require urgent steps to be taken to ensure an injured worker’s rights are protected. Accordingly, it is very important that injured workers seek the advice of an experienced personal injury lawyer to ensure their rights are protected.
