The following is a case note on the matter of Weir Services Australia v Allianz Australia Insurance Limited [2013] NSWSC 26.
It is difficult to know these days whether it is underwriting or claims that gets the most headaches from situations involving cross border issues and the "State of connection". In this action, Chief Justice Bergin, in the Equity Division of the Supreme Court of New South Wales, was called upon to consider one such issue.
In most States, common provisions have been enacted to simplify and regularise decisions on disputes where questions of jurisdiction arise between Australian States.
Uncertainties develop when employment arrangements embody a mixture of elements such as the following:
Worker lives in state A, is engaged by an employer located in state B to work on a project located in state C.
There are many permutations of this type of employment arrangement.
In Western Australia, s.20 of the Workers' Compensation and Injury Management Act deals with the issue and is in substantially the same terms as s.31A of the Workers' Rehabilitation and Compensation Act 1988 in Tasmania.
In this case Mr Taylor, who lived in Perth, was employed by the plaintiff, Weir Services Australia Pty Ltd, to work on a temporary basis in a project in Tasmania.
Weir had an employers' indemnity insurance policy with Allianz in Tasmania.
Taylor commenced his employment in Tasmania on 11 February 2008 and was injured on 16 February 2008. He received payments of compensation on an ex-gratia basis from Weir (the plaintiff), which in turn sought reimbursement from Allianz under its employers' indemnity policy.
Allianz disputed liability with the result that Weir's claim for indemnity under the policy came before the Court for determination.
The question was whether Mr Taylor's employment was connected with the State of Tasmania and the issues were narrowed such that the question to be decided was, pursuant to s31A(1)(a), where Mr Taylor usually worked in the employment.
Sub-section 6(b) states that in deciding whether a worker usually works in a State, "regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than six months".
The intended period of employment was less than six months and the period of actual employment only a few days. Allianz argued that in determining the State of connection, by reason of ss.6(b), the brief period of employment in Tasmania should be disregarded.
Chief Justice Bergin reviewed the authorities, including the decision of Commissioner Herron in Western Australia in the case of Tamboritha Consultants Pty Ltd v Knight and had no difficulty reaching the conclusion that the employment in question was not excluded from consideration. The provision was not intended to apply to such a case, but was intended to apply to an employee who is normally based in one State and who on a temporary basis of not more than six months was required to work in another State.
The Chief Justice was satisfied that Tasmania was the State of connection and ordered Allianz to indemnify Weir.
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