|Focus:||Ferguson v WorkCover Queensland  QSC 78|
In Ferguson v WorkCover Queensland  QSC 78 (27 March 2013) (Ferguson case), Justice Applegarth of the Supreme Court of Queensland considered the interaction between the Queensland and New South Wales workers' compensation acts.1
In particular, the decision addresses what it means to 'usually work' or to be 'usually based' in a particular state or states.
Both of the above constructs are important when deciding whether a worker should be claiming compensation or damages in New South Wales or in Queensland.
Subsection 10(2) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) excludes from the definition of damages "a liability against which the employer is required to provide under – (a) another Act; or (b) a law of another State, the Commonwealth or of another Country".
An employer is required to take out insurance in New South Wales if a worker's employment is connected with New South Wales pursuant to sections 9AA and 155 of the Workers' Compensation Act 1987 (NSW).
The New South Wales and Queensland Acts provide for a cascading series of tests to ascertain the state with which employment is connected. One must first look at where a worker 'usually works' in the employment. If that test does not permit any one state to be identified, one needs to look at where a worker is 'usually based' for the purposes of the employment. If no one state can be identified, one has to look at where the employer's principal place of business in Australia is located.
Mr Ferguson alleged that he usually worked in Queensland. He spent much of his time driving delivery trucks. He drove on both sides of the border, but gave evidence that for a period of time prior to his injury he was making a majority of his deliveries into Queensland.
Justice Applegarth noted in his reasons that the Queensland and New South Wales Acts must be interpreted in a way which permitted a conclusion to be drawn that a worker usually works in more than one state. This points away from a mathematical approach, where one seeks to ascertain which state the worker spent the greater proportion or percentage of her or his time. Rather, the place where a worker 'usually works' means the place where the worker habitually or customarily works, or works in a regular manner.
His Honour commented that regard must be had to the worker's work history with the employer, however work which is remote in time from the period of months leading up to the incident, has less bearing on the issue than the work during this period.
Mr Ferguson established that he 'usually worked' in Queensland. He also 'usually worked' in New South Wales, because it was also customary, common or frequent for him to undertake work south of the border. Justice Applegarth concluded that Mr Ferguson 'usually worked' in two states, Queensland and New South Wales.
As no one state could be identified by examining where Mr Ferguson 'usually worked', it was necessary to consider where Mr Ferguson was 'usually based'. Different factors could be relevant when considering where a worker is 'usually based'. A worker will not always have a base, and it may not always be possible to discern where a worker is based.
In Mr Ferguson's case, he turned up to the Tweed Heads warehouse each morning where he received his instructions and loaded his truck, and he returned to the Tweed Heads warehouse at the end of each day. His truck was kept at the Tweed Heads warehouse. These were all relevant factors, which led to the conclusion that Mr Ferguson was 'usually based' in New South Wales.
It was not necessary to consider where the employer had its principal place of business in Australia.
As the claim was connected with New South Wales, the Court refused to make a declaration that the exclusion in section 10(2) of the Workers' Compensation and Rehabilitation Act 2003 did not apply.
Mr Ferguson was not entitled to pursue a claim for damages in Queensland.
Workers can be held to 'usually work' in more than one state, even where the majority of the worker's day is spent in a single state. In this situation, a Court would consider where the employer was 'usually based'. It is not always easy to ascertain where a worker usually works or is based, when the nature of the work changes over time.
Employers should ensure that these issues are addressed with each worker at the start of employment and that the issues are revisited whenever there is a substantial change in the employment. Employers should ensure that each of their workers are covered by a policy of workers' compensation insurance in the state with which the worker's employment is connected.
1Justice Applegarth also previously considered these issues in RHG Home Loans Pty Ltd v Employers Mutual New South Wales Ltd  1 Qd R 262.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.