AEG Interstate Transport (Nominees) Pty Ltd v Q-COMP (No. 2) [2006] QIRC 154 (2006) 183 QGIG 938

[Extract from Queensland Government Industrial Gazette, dated 8 December, 2006, Vol. 183, No. 19, pages 938-942] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission AEG Interstate Transport (Nominees) Pty Ltd AND Q-COMP (No. 2) (WC/2006/39) COMMISSIONER ASBURY 24 November 2006 DECISION 1. Background This is an appeal by AEG Interstate Transport (Nominees) Pty Ltd (AEG) under s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the Act) against a decision of the Q-COMP Review Unit dated 8 May 2006. In that decision, the Q-COMP Review Unit confirmed the rejection by WorkCover of an application by an employee of AEG, Mr Peter Anthony Athanitis, for workers' compensation. Mr Athanitis' application for compensation was originally rejected by WorkCover on the grounds that his employment was not connected with the State of Queensland in accordance with s. 113 of the Act, at the time his injury was sustained. On review, Q-COMP determined that Mr Athanitis was usually based in the State of New South Wales in accordance with s. 113(3)(b) of the Act. As a result of the refusal by WorkCover to accept Mr Athanitis' claim for compensation, Mr Athanitis received benefits under a liability and indemnity scheme for uninsured workers in New South Wales. AEG is currently subject to proceedings in New South Wales seeking recovery of benefits paid to Mr Athanitis under the liability and indemnity scheme. AEG maintains that Mr Athanitis' employment was connected to the State of Queensland and that he is entitled to workers' compensation under the Act. After being provided with an adjournment to consider his position and to seek legal advice, Mr Athanitis decided that he would not seek to become a party to the present appeal. 2. Evidence In the appeal, evidence was given for the appellant by:  Lloyd Colin BOWTELL - Operations and Fleet Manager for AEG from early 2004 until 23 September 2005;  Peter Anthony ATHANITIS - Employee of AEG injured on 4 July 2005. Evidence was given for the respondent by Jacinta Ann COTTRILL, Claims Representative for WorkCover Queensland. The business conducted by AEG predominantly involves cartage of freight in a circuit from Millicent in South Australia to Melbourne, Sydney and Brisbane. AEG's base is at Bundall on the Gold Coast, and consists of an operational complex, and administrative complex. AEG has a workshop facility at Rocklea in Brisbane. The fleet operated by AEG consists of 45 "B-Doubles" with approximately 25 prime movers owned by AEG and the remainder owned by sub-contractors. Vehicles owned by AEG were driven by its employees. From May to September 2005, Mr Bowtell was involved in the employment of drivers on behalf of AEG. AEG normally ran two types of operation. A single driver operation where drivers went out for two or three weeks and operated around the circuit, and the shuttle operation. Shuttles involved one driver leaving Sydney and another driver leaving Melbourne, meeting halfway and swapping vehicles. There was also local work involving loading and unloading. When Mr Athanitis was employed, AEG was setting up shuttles to run between Sydney and Melbourne or Sydney and Brisbane. AEG was also looking for interstate drivers and a local driver in Sydney. AEG had employed a local driver in Sydney, who had resigned and gone to work for another company. After having difficulty finding a replacement, AEG transferred a Brisbane based driver to Sydney. That driver had requested a temporary transfer due to the illness of a family member, and had subsequently returned to Brisbane. Mr Athanitis had been engaged on the basis that he would perform local work for a period of time until AEG was able to employ another driver. Mr Bowtell said that it was hoped that another local driver could be employed within a month. After the month had expired, Mr Athanitis could have worked out of Sydney direct, or done the shuttle to Melbourne, or out of Sydney to Brisbane. According to Mr Bowtell's evidence, Mr Athanitis expressed a desire to move out of Sydney, and Mr Bowtell had suggested Melbourne as he had believed that it was more likely that there would be a job available in Melbourne, compared to Queensland, where AEG had a full complement of drivers. The question of where Mr Athanitis was to be based was not resolved, as Mr Athanitis injured himself three weeks after commencing employment while he was still performing local work. -- 1 of 4 -- 2 Under cross-examination, Mr Bowtell agreed that when he interviewed Mr Athanitis, he completed a document stating that Mr Athanitis understood that the job was mainly local with some changeover or interstate work as required, and that it involved mainly night work. Mr Bowtell also agreed that one of the possibilities was for Mr Athanitis to work from Sydney to Melbourne. Further Mr Bowtell had suggested that Mr Athanitis go to Melbourne. Mr Athanitis' evidence was that he applied for a job with AEG because it was a Brisbane company and he wanted to move to Brisbane. Mr Athanitis said when he contacted AEG he had expressed an interest in a job as an interstate driver. While Mr Athanitis had initially applied for a job as a local driver in New South Wales, his understanding had been that this was a temporary role for a six to eight week period, and he would be given an interstate run when a truck became available. There had been no final decision on what run Mr Athanitis would be assigned, at the point he sustained his injury. Under cross-examination, Mr Athanitis said that he had discussed the nature of local work during his telephone interview with Mr Bowtell, but understood that he would only be doing this work for six to eight weeks. Mr Athanitis also said that when he was interviewed by an officer of WorkCover on 15 July 2005, he had been asked what he was doing when he had the accident. Mr Athanitis agreed that he had responded to this question by stating that his job involved unloading interstate trailers when they came into the yard in New South Wales, and then driving them to the place of delivery, which was also in New South Wales. Mr Athanitis maintained that he had not been asked whether he was an interstate worker and that he would have told the WorkCover officer that he was doing local work at the time of the accident. In relation to his discussion with Mr Bowtell prior to commencing employment with AEG, Mr Athanitis said that Mr Bowtell had not suggested that he go to Melbourne and at that stage it had been either Melbourne or Brisbane. Ms Cottrill made the decision for WorkCover that Mr Athanitis was not entitled to workers' compensation. Ms Cottrill said that she had a telephone conversation with Mr Athanitis on 14 July 2005 just after 4.00 p.m. The purpose of the conversation was to establish whether Mr Athanitis had a connection with Queensland, because his claim form indicated that he lived in New South Wales and that he was injured while working in that State. Ms Cottrill asked Mr Athanitis whether he was employed by AEG to work in other States as an interstate driver, and in response, Mr Athanitis stated that he was a local worker only in New South Wales, and there was no intention that he work in Queensland. Ms Cottrill also said that she asked Mr Athanitis what he did, and that he told her that he unloaded trucks dropped off in the yard by interstate truck drivers. Under cross-examination, Ms Cottrill said that she had refreshed her memory from a file note she had prepared before giving evidence. That file note was interpretative of the conversation with Mr Athanitis rather than being an exact recording. Ms Cottrill said that Mr Athanitis' statement that he was a local worker and not an interstate worker was not recorded in her file note. In response to the proposition that if Mr Athanitis had made this statement it would have been recorded in the file note, Ms Cottrill said that she had just written what she thought Mr Athanitis said. Ms Cottrill also agreed that she might have asked Mr Athanitis what he was doing in the weeks leading up to his injury, and that she had interpreted what Mr Athanitis told her, to determine that he was not employed as an interstate driver and that he did not intend to work in this capacity. 3. Issues for Determination The central issue for determination in this appeal is whether Mr Athanitis' employment is connected with the State of Queensland so that compensation under the Act is payable. The provisions of the Act relevant to this issue are found in s. 113, which provides as follows: "113 Employment must be connected with State (1) Compensation under this Act is only payable in relation to employment that is connected with this State. (2) The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State. (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 by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located. (4) In the case of a worker on a ship, if no State or no 1 State is identified by subsection (3), a worker's employment is, while on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered. -- 2 of 4 -- 3 (5) If no State is identified by subsection (3) or (if applicable) (4),a worker's employment is connected with this State if- (a) the worker is in this State when the injury is sustained; and (b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter. (6) In deciding 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. (7) However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months. (8) Compensation under this Act does not apply in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker's employment. (9) In this section - State, in a geographical sense, includes a State's relevant adjacent area as described in schedule 4.". 4. Submissions Mr Rashleigh for Q-COMP argued that the written statement of Mr Bowtell confirming that he had explained to Mr Athanitis that the job was mainly local, should be viewed as a prior inconsistent statement, in terms of the Evidence Act 1977 (Qld), and admissible evidence of the facts stated therein. When the prior inconsistent statement of Mr Bowtell was viewed with what Mr Athanitis said to Ms Cottrill, it was clear that the State in which Mr Athanitis usually worked was New South Wales. Mr Rashleigh submitted that the evidence established that Mr Athanitis' employment was connected with the State of New South Wales because he usually worked in that State as provided in s. 113(3)(a) of the Act. If the Commission did not accept this argument, then Mr Athanitis was usually based in New South Wales as provided in s. 113(3)(b) for the purpose of that employment. It was also submitted by Mr Rashleigh that there was nothing to suggest that Mr Athanitis might have gone anywhere else. Although there was some vague intention that he might have gone to Queensland or Victoria, at the time Mr Athanitis was injured, he was usually based in New South Wales. It was conceded by Mr Rashleigh that if Mr Athanitis' connection with New South Wales could not be established pursuant to s. 113(3)(a) or (b) then AEG's principal place of business was the Gold Coast and by default, Queensland would be the State with which Mr Athanitis' employment was connected. Mr Rashleigh submitted that s. 113(7) qualifies s. 113(6) because of the reference to where a worker "works" rather than to where a worker is based. Therefore s. 113(7) had no application to the consideration of where a worker was usually based under s. 113(3)(b). For AEG, Mr Horneman-Wren submitted there was no real challenge to the evidence of both Mr Bowtell and Mr Athanitis that there was an intention for Mr Athanitis to be an interstate truck driver and that this was the position he had applied for. The statement made by Mr Bowtell on employing Mr Athanitis was that the job was mainly local, with some changeover or interstate work as required, was not consistent with Ms Cottrill's evidence about what Mr Athanitis said to her. It was also pointed out that the statement allegedly made by Mr Athanitis to the effect that he was not employed as an interstate driver, had not been recorded in Ms Cottrill's file note. The evidence of Mr Bowtell and Mr Athanitis was that Mr Athanitis was temporarily filling a position while waiting for a position as an interstate driver to become available. This did not eventuate because of Mr Athanitis' injury. It was submitted that this was classically a situation contemplated by s. 113 of the Act. In determining whether employment is connected with the State of Queensland, s. 113(3) does not stand in isolation. The legislature had gone on to say that regard must also be had to the history and the intention of the worker and the employer. While there was no relevant history in connection with the current matter, there was a clear intention that Mr Athanitis would be an interstate truck driver, but at a place indeterminate at that point in time. As a result, one could not say which State Mr Athanitis worked in. It was also submitted that notwithstanding the fact that Mr Athanitis and Mr Bowtell had different intentions with respect to the State in which Mr Athanitis would work, the relevant intention was that Mr Athanitis would perform interstate work. That intention was mutual, although Mr Athanitis and Mr Bowtell had different preferences about how it would be carried out. Further, Mr Horneman-Wren submitted that at the point of his injury, Mr Athanitis was filling a position temporarily, within the meaning of s. 113(7). Accordingly, it could not be said that the temporary arrangement was the only one carried out, and that this meant that the employment was connected with New South Wales. Because it could not be said that Mr Athanitis usually worked in New South Wales, it was necessary to consider s. 113(3)(b) of the Act to establish where Mr Athanitis was usually based. In answering this question, the temporary arrangment employment was removed from consideration by virtue of s. 113(7) of the Act. That subsection was said to qualify the whole of s. 113, so that it also went to where a worker was usually based as provided by s. 113(3)(b). This was said to make abundant sense, because if temporary arrangements were to be put aside, then it would be expected that they would not be put aside for the purpose of establishing where the person usually worked, but rather for the consideration of whether a person was usually based somewhere to work. It was submitted that the current case was one in which the Commission could not be satisfied as to where Mr Athanitis was usually based. All that the -- 3 of 4 -- 4 Commission could be satisfied about was that Mr Athanitis was to be employed as an interstate driver, and based somewhere. As a result, by virtue of the default provision in s. 113(3)(c), Mr Athanitis' employment was connected with the State of Queensland, which was the principal place where the business of AEG was located. 5. Conclusions Mr Horneman-Wren's argument was extremely well constructed and articulated. However, I am unable to accept it. In my view, the evidence does not establish that on the balance of probabilities, Mr Athanitis was employed as an interstate driver. At the point Mr Athanitis was employed, AEG was looking for shuttle drivers, interstate drivers and a local driver in Sydney. All that can be ascertained is that Mr Athanitis was employed as a driver, initially on a local basis and that later Mr Athanitis may have worked as a shuttle or an interstate driver. The position as a local driver was not temporary. Before the employment of Mr Athanitis, that position had been filled on a temporary basis by an employee from Brisbane who wanted to be in Sydney for personal reasons. On appointment, Mr Athanitis was told that the job he was being employed to do was mainly local, with some changeover or interstate work as required. There was no indication as to what those requirements might have been. At the point Mr Athanitis was employed, there were several possibilities with respect to future work he might perform. Mr Athanitis might have remained in the position as a local driver if there were no requirements for other work to be performed by him. Mr Athanitis may also have undertaken the work of a shuttle driver or interstate driver. The evidence of Mr Bowtell was that shuttle drivers employed by AEG operate out of both Sydney and Melbourne. There was no evidence that shuttle drivers employed by AEG are not based in the State in which their run commences. It is not clear that Mr Bowtell had any intention that Mr Athanitis work as an interstate driver, and the possibilities that Mr Athanitis may have worked as a shuttle driver, or remained as a local driver if no work in any other capacity became available, are equally open. It is also clear that any intention Mr Athanitis may have had with respect to his future employment was not shared by Mr Bowtell. In particular, Mr Athanitis' desire to go to Queensland was just that, and there is no indication that this would have occurred. Work history and intentions of the worker and the employer are two factors for consideration in deciding whether a worker usually works in a State. Intention is not determinative, and I can see no basis in this case for giving greater weight to the intentions of parties entering into an employment contract than is given to work history. This is particularly so when it is clear in this case that the intention of the worker and the employer was not mutual. On balance, AEG has not established that Mr Athanitis usually worked anywhere other than New South Wales. Further, AEG has not established that the work performed by Mr Athanitis in New South Wales was a temporary arrangement in terms of s. 113(7). Accordingly, Mr Athanitis' employment was connected with the State of New South Wales where he usually worked at the time of sustaining his injury. There is no requirement to consider whether Mr Athanitis was usually based in New South Wales for the purposes of s. 113(3)(b). However, if I was required to make a finding on this point, it would be that Mr Athanitis was usually based in New South Wales for the purposes of establishing the State with which his employment was connected. I do not accept the argument that s. 113(7) qualifies the whole of s. 113. In my view s. 113(7) qualifies s. 113(6), which in turn operates with respect to s. 113(3)(a). The term "usually works" is found in s. 113(3)(a) and in s. 113(6). Section 113(7) commences with the preface "However" indicating that this section follows on from s. 113(6). By definition, a worker can only be based in one place, whether or not that situation is temporary. However, a worker can be based in one place but work in another, and it is understandable that the legislation would contemplate a situation where the length of time work is performed in a particular place may be relevant. The appeal is dismissed. I order accordingly. I reserve the question of costs. I.C. ASBURY, Commissioner. Hearing Details: 2006 19 September 23 October Appearances: Mr A. Horneman-Wren instructed by Ms A. Engel of Bell Legal Group for the appellant. Mr P. Rashleigh instructed by Ms T. Smith of Q-COMP. Released: 24 November 2006 Government Printer, Queensland The State of Queensland 2006. -- 4 of 4 --