A recent Federal Court decision has provided a rare ruling on reasonable additional hours of work finding that a migrant worker being required to work 50 hours per week was unreasonable additional hours.
In Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512 it was held that Sydney’s largest meat wholesaler, Dick Stone Pty Ltd, was found to have breached sections 62 and 125 of the Fair Work Act 2009 (Cth), in addition to clauses 5, 31.2(d), 34.2 and 36.1(a) of the Meat Industry Award 2010, for unreasonably requiring its employee to work in excess of 38 hours.
General legislative provisions
Most employment contracts provide that an employee may be required to work additional hours to perform their work duties where such additional hours are of a reasonable nature. This coincides with section 62 of the Fair Work Act 2009 (Cth), which expresses that an employer must not request or require the weekly hours of a full-time employee to exceed 38 hours unless the additional hours are reasonable.
There are several considerations determining the reasonable nature of additional hours. As per section 62(2) Act, the following must be considered:
The Case
In 2016, Dick Stone Pty Ltd employed a migrant, who had arrived from Ghana just 3 weeks prior. Upon the commencement of his employment, the employee was provided with documentation including a ‘employment form’ & ‘employment commencement pack’ (Employment Contract). The Employment Contract distinguished the employee’s ‘ordinary hours’ as 50 hours per week, yet failed to refer to overtime, or mention the relevant award.
Dick Stone Pty Ltd argued that while the employee did not receive traditional overtime payments for the additional hours he worked per week, he did receive a ‘blended rate’ which incorporated overtime.
The employee expressed that he was simply instructed to work from 2:00am to 11:30am Monday to Friday, and from 2:00am to 7:00am on Saturdays. Unsurprisingly, he described the work hours as ‘very draining and tiring’. Emphasising his vulnerable situation of only living in Australia for a mere few weeks and having no knowledge of Australian law or employee rights at the time “he insisted that, if he were given a choice, he would not have chosen to work those hours”.
Justice Katzmann highlighted there were several of deficiencies in the Employment Contract particularly given that none of the documents mentioned what the employee would be remunerated. Ultimately, although a 50-hour week “aligned with Dick Stone’s business needs”, Justice Katzmann found that this did not necessarily mean the additional hours were reasonable in the worker’s case as he was not given a choice. As such, in considering the factors under section 62(2) of the Fair Work Act 2009 (Cth), including the work health and safety risks associated with long shifts in a role where an employee was to use knives, Justice Katzmann held that it was unreasonable to require the employee to perform 12 extra hours per week.
Key Takeaways:
This case highlighted that regardless of whether an employee freely agrees to an employment contract which establishes a requirement to work additional hours, this will not deem those additional hours to be reasonable in each individual worker’s case. As such, in light of the decision in Australasian Meat Industry Employees Union v Dick Stone Pty Ltd, employers should:
Traditionally, a tenet of operating a corporate entity is the limited liability bubble protecting directors from personal liability arising from third party claims. To preface, corporations are separate legal entities that attracts limited liability by way of a ‘shield’ which protects the directors from company actions and debt.
Both the Courts and legislative instruments, primarily the Corporations Act 2001 (Cth) have developed principles and provisions bolstering the ‘Corporate Veil’. However, there are limited circumstances where the Courts will hold directors and owners responsible for third party claims, specifically in the employment space.
Notoriously, section 550 of the Fair Work Act 2009 (Cth) (Act) imposes liability on a person involved in a contravention of a civil liability provision contained in the Act.
The Act imposes “accessorial liability” on directors and/or upper management where they are “involved” in the contravention of the Act. The Act considers that “involved” persons are taken to have engaged in the contravention of the provision themselves, regardless of whether they had “actual” knowledge or “ought to have known” that their conduct contravened a term of the Act.
Section 550 of the Act effectively pierces the corporate veil by making directors personally liable for contraventions including (but not limited to):
In addition to directors being personally liable for contraventions of the above civil provisions, steep penalties in the amount of up to $51,400 may apply to each individual director and up to $257,000 to the employer company.
In the landmark decision Fair Work Ombudsman v Step Ahead Services Pty Ltd [2016] FCCA 1482, Judge Jarrett determined that the Respondent Company and their director, Mr Owen Jennings, demonstrated “calculated and deliberate conduct” which amounted to a “blatant disregard for Australia’s workplace laws and the rights of employees”.
On the basis that Mr Jennings was the “controlling mind” of Step Ahead Pty Ltd and was well aware of the requirements in the applicable Modern Award, the company and Mr Jennings were jointly required to pay the underpaid $22,889.72 owed to the employees.
In addition, Judge Jarrett ordered a record penalty in the amount of $51,400 to be paid by Mr Jennings personally, and $257,000 on the company for contravening the Act for the purposes of specific deterrence. This decision highlights the increasing willingness of the Courts to pierce the corporate veil and make directors accountable for breaches of the Act and ancillary industrial instruments.
With sweeping changes to Modern Awards, employers should pro-actively update their employment contracts and undertake regular pay reviews to ensure compliance with the Act and relevant industrial instruments to avoid the imputation of liability by piercing the corporate veil.
Contact the Workplace Law Team at Chamberlains Law Firm for a workplace health check today.
Recently, there has been increased discussion about the role class actions might play in historic sexual abuse claims. In particular, the settlement of the class action against the Retta Dixon home in the Northern Territory in 2017 has demonstrated that it is possible for defendants like the Commonwealth to settle claims as a group in this way. While there are many benefits of class actions, there are many disadvantages to pursuing historic sexual abuse claims by way of a class action that must be carefully considered.
What are class actions?
Class actions are claims by seven or more people who have been impacted by a common issue. Where a wrongdoing affects many people, the claims can be brought together in a single action against a defendant. As a result, class actions provide an efficient means for large groups of people to access justice, particularly so where people may have not pursued their claims otherwise. Whilst class actions have clear benefits in some cases by streamlining the legal process, they are not the most appropriate legal mechanism for historic sexual abuse matters.
What are the risks of class actions in historic sexual abuse matters?
First, class actions for historic sexual abuse matters will almost always result in a significantly lower quantum of damages for abuse survivors than an individual action. By having a single decision that determines the outcome for every person in the action, damages are not considered on an individual level, resulting in abuse survivors receiving a much lower sum of money than they are entitled to. So, to the extent that you want to maximise your financial recovery, you should re-consider joining a class action and opt for an individual action instead. Whilst no amount of money can erase the pain caused by the abuse, compensation is an important step in allowing you to access the care and support services you need.
Secondly, members of a class action are generally not involved in instructing lawyers and making decisions about how the case proceeds. They also generally have no input in settlement. Bringing a historic sexual abuse claim is a very big step for any abuse survivor, and it is essential that survivors are given individualised support and advice throughout their journey. After all, bringing a historic sexual abuse claim is as much about being heard and gaining a sense of individualised justice and closure as it is about receiving adequate compensation. This type of personalised support can only be achieved in an individual claim.
What is the best route for an abuse survivor?
If you or a loved one has been the victim of sexual abuse, the best thing you can do is to contact our experienced lawyers about commencing an individual claim. It is important to be aware of the various risks associated with class actions in historic sexual abuse claims when considering your options. At Chamberlains, we strive to obtain the best possible outcome for you and your loved ones by providing individualised support and advice. Reach out to our team of abuse compensation lawyers.
A recent appeal of a general protections decision has determined that the judge incorrectly ruled that a casual employee can be terminated at will, confirming that section 340(1) of the Fair Work Act 2009 applies to a casual employee.
The Law
Section 340(1) of the Fair Work Act 2009 provides that a person:
“must not take adverse action against another person … because the other person … has … exercised a workplace right.”
Trial decision
In Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526 the employee made a general protection claim for adverse action resulting in dismissal arising out of his enquiry as to whether he would be paid overtime for working additional hours and subsequent termination.
Judge Vasta found that cessation of casual employment is not adverse action and the exclusion given in section 342(3) of the Fair Work Act 2009 applied, finding in favour of Cooloola Milk Pty Ltd.
Appeal decision
On Appeal, in Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75, Justice McElwaine observed that Judge Vasta provided “very brief reasoning” for his first instance decision.
Notably, Justice McElwaine observed that Judge Vasta failed to establish that the employee exercised a workplace right by offering to perform unscheduled work if he was paid. Further, Justice McElwaine determined that the employee should not have been classified as a casual worker, as he did not receive any casual loading, and Cooloola Milk Pty Ltd had paid him for holidays and sick days.
As such, Justice McElwaine found that Judge Vasta erred in finding that casual employment arrangements allow employers or employees to “simply end employment arrangement whenever either wishes to do so” and that section 342 of the Fair Work Act 2009 applies to dismissal of employees without limitation as to the characterisation of the employment arrangement.
Key Takeaways for Employers:
The decision serves as an important reminder for employers to:
Contact the Workplace Law Team at Chamberlains Law Firm for any questions and concerns.
With ample industrial instruments, policies and procedures governing the workplace, employers across the nation are tasked with navigating a minefield of competing advice when conducting disciplinary management without exposing their business to an unfair dismissal claim.
In Todd James v NSW Trains [2021] FWC 4733, the Fair Work Commission determined that a significant reduction in salary without a reclassification to the role and responsibilities of an employee may constitute an unfair dismissal pursuant to section 386 of the Fair Work Act 2009 (Cth) (FWA).
Following an investigation into allegations of misconduct, Mr James was disciplined by way of reducing his gross annual salary from $141,442 to $127,569. Given that Mr James suffered a reduction in pay which was ‘important, notable and of consequence, having regard to its context and intensity’, the demotion constituted a constructive dismissal thereby permitting Mr James to file an unfair dismissal application.
In what circumstances does a demotion constitute a termination?
For the purposes of the FWA, a ‘dismissal’ occurs when an employee is ‘terminated at the employer’s initiative or if they have been forced to resign by the employer’s conduct’.
The matter of Todd James v NSW Trains held that a demotion will constitute a dismissal when it involves a significant reduction in the employee’s remuneration or duties, and the employee remains employed. Ancillary case law has considered that ‘termination of employment’ refers to termination of the employment relationship, rather than the employment contract.
Therefore, a significant variation to the terms of the employment contract such as a reduction in remuneration or duties may constitute a termination of an employment relationship. In the event that a demotion is an authorised form of disciplinary management in accordance with an employment contract or industrial instrument, depending on the severity, it may constitute a variation warranting dismissal.
The outcome of this decision geared employees to challenge the validity and fairness of certain disciplinary actions including demotion. With employers warned to tread carefully, NSW Trains appealed the decision and the Fair Work Commission have switched the goal posts once more.
In NSW Trains v Todd James [2022] FWCFB, the Bench confirmed that ‘the repudiation of a contract of employment by variation that is accepted and gives rise to a new contract of employment also results in the termination of the employment relationship’. However, provided the employee makes clear their objection to the demotion, they are not taken to have affirmed their original contract of employment by merely continuing to work.
Nevertheless, the question to be tried concerned whether the employee has been dismissed per s 386 of the FWA ‘if an employer exercises rights under a statute, enterprise agreement or employment contract to demote or significant reduction an employee’s remuneration or duties’.
The majority determined that:
“The demotion of an employee exercised under a power in an industrial instrument or statute and in accordance with its terms will not constitute a dismissal for the purposes of s386 of the FWA, where the instrument provides that demotion does not constitute termination of employment”.
It was held that Sydney Trains were acting within the provisions of their Enterprise Agreement, which prevailed over the contract of employment and displaced the contract of employment to the extent of any inconsistency.
Quashing the decision, the majority dismissed Mr James’ unfair dismissal claim.
Key Takeaways
Operating a business requires a solid framework of policies and procedures that govern the behaviour and relationships in the workplace. Importantly, drafting iron-clad employment contracts and enterprise agreements which provide employers broader scope to pull employees into line is crucial to minimising exposure to costly unfair dismissal claims.
With a rapidly evolving employment landscape, contact our workplace law team for guidance on preparing tailored workplace documents and navigating performance management effectively.
Equity steps to remedy the breach of a purchaser in a property transaction – Hamann v Taleb [2021] NSWSC 1632
The plaintiffs were purchasers of property in Bexley by way of a contract entered into on 9 January 2021. The plaintiffs had commenced proceedings against the defendants, the vendors, for an award of damages (known as equitable damages) under section 68(b) of the Supreme Court Act 1970 NSW (the SCA) for damages suffered as a result of the defendants’ delay in completion of the contract.
Section 68(b) of the Supreme Court Act 1970 grants the Court the power, upon breach of a contract to:
An award of damages under section 68(b) is a statutory remedy and is available if a plaintiff makes out an equity for relief through specific performance: Madden v Kevereski [1983] 1 NSWLR 305 at 306G-307D.
Breach of Contract
Originally, the contract was set to be completed by 8 March 2021. The defendants were not ready as they were awaiting a Foreign Resident Gain Withholding Clearance Certificate from the Australian Tax Office. The contract was not completed by the set date.
On 31 May 2021, the plaintiffs lodged a caveat on the property and pressed the defendants to confirm whether the contact would be completed by 7 June 2021. The contract was not completed by this date and on 15 July 2021, the Court made a declaration that the contract ought to be specifically performed and the plaintiffs were awarded their costs in the sum of $12,000.00. The contract was completed on 21 July 2021.
The completion of the contract between the plaintiffs and defendants only occurred only after an order was obtained from the Court for specific performance. This order then enlivened the jurisdiction of the Court’s to award damages under section 68(b) of the SCA (McKenna v Ritchey [1950] VLR 360).
Damages at Common Law
The plaintiff’s loss as a result of the conduct of the defendant included a liability to pay an increased rate of interest on funds borrowed for the purchase of the property. This is what the plaintiffs sought as a remedy from the Court on the basis of the defendant’s clear breach of the contract in question.
The Court confirmed that the damages sought by the plaintiffs were too remote to be granted damages at common law.
Damages at Equity
The Court then turned its focused to section 68 of the SCA and whether the plaintiff could recover the damages sought in equity.
The Court considered the defendant’s delay and the notice provided by the plaintiff’s representatives that if the contract was not completed on time, that the plaintiffs would suffer a loss and the nature of this loss was such to diminish equity in the property. This is because the plaintiffs debt to the bank would be greater than it would have been had the contract been performed on time.
The Court considered that a just outcome in these circumstances would be to “restore the plaintiffs to the position which they would have been in had the defendants completed the contract in a timely manner, or at least, before the plaintiffs suffered their loss”.
To that end, the Court awarded the plaintiff damages under section 68(b) of the SCA in addition to the order for specific performance of the contract, in the sum of $15,000.00 representing the diminution of value in the property
This case sheds some further light on the application of equitable principles where mere delays occur between contracting parties and how the Court deals with the consequences of losses suffered by one party as a result of a breach in contract.
Practitioners will be pleased to know that the NSW Supreme Court has provided clarity on the order of priority for employee debts and secured creditor claims.
The matter, In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation), involved the liquidators of two insolvent companies (Spitfire Corporation Ltd and Aspirio Pty Ltd) seeking directions under s 90-15 of the Insolvency Practice Schedule (Corporations).
The direction sought concerned the correctness of the liquidators’ view that they were justified to treat the research and development tax refunds received by the insolvent companies as being subject to a circulating security interest and therefore, capable of being used to discharge debts (in accordance with s 561of the Corporations Act 2001 (Cth) (‘CA’)).
Importantly, as the insolvent companies owed debts to employees, this direction would have the effect of placing employee claims in priority over those of secured creditors (namely, Resilient Investment Group Pty Ltd, a party to these proceedings).
The Research and Development Refunds
Before considering the decision in this case, a brief background is necessary.
Because of its business, Spitfire qualified for a research and development tax offset from the ATO. While under external administration, Spitfire received two refunds for 2019 and 2020.
As to the assets and claims in liquidation, there was $1,451,463.54 available from the liquidation of Spitfire. This amount reflected the research and development refunds (‘R&D Refunds’) after deducting approved remuneration. Total creditor claims amounted to $4,142,639.23 and $1,088,873.23 was owed to Resilient, a secured creditor.
Are the R&D Refunds an asset available for distribution under s 561 of the Corporations Act?
A central question for the Court was whether the R&D Refunds were asset available for distribution under s 561 of the CA.
Relevantly, s 561 provides that where a company’s property is insufficient to discharge the debts owed to employees, property which is subject to a circulating security interest must be used to pay employee debts before paying secured creditors.
Put simply, s 561 ‘elevates’ the claim of an employee above secured creditors and allows employees to be paid out from company property subject to a circulating security interest. A ‘circulating security interest’ is a ‘PPSA security interest’ with a ‘circulating asset within the meaning of the Personal Property Securities Act 2009’ attached. A ‘PPSA security interest’’ is defined based on the meaning in the PPSA. A circulating asset is defined in s 340 of the PPSA.
After considering the authorities, the Court concluded that the R&D refunds were ‘property’ and ‘personal property’ for the purposes of s 340(1) of the PPSA. Importantly, the court noted that simply because the refunds required tax returns to be lodged before they could be converted into money did not displace their status as property.
Furthermore, the Court was satisfied that the R&D refunds constituted ‘circulating assets’ under s 340(1)(a) of the PPSA and therefore s 561 of the CA was engaged. Employee debts must be paid in priority (and using these refunds) over secured creditors (including Resilient).
Key Takeaways:
Although a very technical case, this case is useful for two primary reasons.
The first and most obvious benefit, is its clarification on how the court characterises research and development refunds and its status as ‘property’.
The second, is that this case reinforces the value of liquidator’s seeking directions under the s 90-15 of the Insolvency Practice Schedule (Corporations). Although directions require the incurring of legal costs, this case demonstrates the value for liquidators in verifying their proposed conduct in administration with the court and therefore guard against accusations of ‘unfair preferences’.
***Assisted by Kayla Cook***
If you have any questions or concerns please contact Chamberlains and talk to one of our insolvency and restructuring lawyers today.
Director Penalty Notice (DPN)
Put simply, a DPN is a notice from the ATO making director(s) personally liable for company tax and super. A true piercing of the corporate veil. DPNs are issued by the ATO when companies fail to report and pay tax or super obligations; significant unpaid debts are involved; and/or there is suspicion of phoenix activity.
Recent online articles in the accounting space have indicated the ATO has potentially issued as many as 50,000 DPNs to company directors in the last week alone. This is the first indication in pandemic times directors face the real risk of full ATO enforcement action if no measures are taken on outstanding company tax and super obligations.
Legislative changes to the DPN regime have substantially broadened the ambit of tax liabilities the Commissioner is able to recover under this action. Upon introduction, DPNs were put in place as a safeguard mechanism for employees to ensure their PAYG and compulsory superannuation obligations were not compromised by insolvent companies or phoenix activity.
Due to the new changes, ATO officers are now able to add GST, FBT, LCT and WET to the tax debts directors are now potentially personally liable for. Other recent changes include the removal of a payment plan option, which means company directors are liable for company tax debts immediately once the DPN is issued.
If you, or one of your fellow directors have recently been issued a DPN by the ATO, its important you know your rights and obligations because this is a personal liability. Contact our tax team to seek advice on tax planning and/or engage legal representation.
What are they?
An Enduring Power of Attorney is a legal document that allows a nominated person (your ‘attorney’) to make legally binding decisions on your behalf. You can specify which powers you wish your attorney to have, which may include:
An Enduring Power of Attorney can be made by anyone over the age of 18 with decision-making capacity. Your nominated attorney does not need to have legal qualifications, but you should pick a trusted person who will act in your best interest. You may have more than one attorney.
Why do you need one?
An Enduring Power of Attorney is not just for the elderly. They can take effect when you lose decision-making capacity, which can happen suddenly and at any time. It is therefore important to create one when you are of sound mind. An Enduring Power of Attorney can take effect in the following circumstances:
If you lose decision-making capacity and do not have an Enduring Power of Attorney, the ACT Civil and Administrative Tribunal will appoint a suitable person as your guardian. If the ACAT determines there is no suitable person, it may appoint the Public Trustee and Guardian.
It is highly advantageous to have an EPOA in place before you lose capacity. Applying to ACAT can take months for the application to be finalised, and you may end up with a government employee making personal decisions in relation to your day-to-day care, assets and living conditions.
Do I need one in each State?
Each State and Territory in Australia has different requirements for an Enduring Power of Attorney. For example, in the ACT all decisions are covered in an Enduring Power of Attorney created under the Powers of Attorney Act 2006 (ACT). Comparatively, in NSW you must create an Enduring Power of Attorney for financial and legal decisions, and a separate document called an Appointment of Enduring Guardian for health and personal care decisions.
While different states may recognise Enduring Powers of Attorney made in other jurisdictions, it is common to prepare Enduring Powers of Attorney documents for each state that you own property in or commonly reside in. This can sometimes be easier and more cost effective than registering an Enduring Power of Attorney from one State into another State. If you live between states, own property in multiple states, or are thinking of moving to a new state, we recommend seeking legal advice from our estate planning lawyers to see how this may affect your Enduring Power of Attorney.
Case Review: Moir v IC Formwork Services Pty Ltd (2022)
Each State and Territory has a Workers Compensation Act their own Workers Compensation legislation, which means it is important to establish which jurisdiction you should lodge your claim, particularly if you work across more than one State or Territory. Filing in the wrong jurisdiction could mean that your claim is denied or you miss out on entitlements.
The State of Connection test was recently considered in the case of Moir v I.C. Formwork Services Pty Limited (No 2) [2022] ACTSC 53. His Honour Judge Elkiam ordered that relevant State of Connection was the Australian Capital Territory and as such the Workers Compensation Act 1951 (ACT) (The Act) was the applicable legislation.
In this matter, Mr Moir commenced proceedings against his employer on 20 April 2018 under the ACT legislation even though the accident itself occurred in NSW. The Defendant’s position was that NSW was the appropriate jurisdiction. At first instance the Court ordered that ACT provisions applied because the Plaintiff usually worked in the ACT. However the higher Court held that the primary judge had erred in finding that the worker only worked in the ACT, as he also worked in NSW in the 12 months prior to injury. The matter was again listed before Judge Elkiam to consider the cascading nature of the test, given the finding at the first stage that the plaintiff usually worked in both the ACT and NSW.
His Honour then examined where the workers was usually based and had regard to the factors in section 36B(7) of the Act, including:
a) The location that the Plaintiff is expected to operate from
Since the Plaintiff worked in multiple states the Court asked the question as to which state did he operate from majority of the time. The court considered that the Plaintiff was a formworker where he would go to a location and all his necessary tools would be located at that location, he would attend that site for any safety meetings and inductions on that constructions site.
His Honour Elkiam found that since the Plaintiff spent majority of the time working in ACT and as a formworker, your tools, office, equipment would all be on the site that he was instructed to attend and that meant that his natural state of work was the ACT.
b) The location that the employer explicitly stated in the Plaintiff’s contract of employment
The Plaintiff was unable to locate a explicit location of work in the Plaintiff’s contract of employment but did argue that the plaintiff’s employment fell under the ACT collective agreement which is subject to ACT legislation. The Defendant argued that since there is no base state in the Plaintiff’s Contract of Employment, then it should not be considered that there is a state based on an industry agreement.
His Honour noted both arguments which he thought were relevant and decided that it was neutral as between the parties.
c) The location from where the Plaintiff received day-to-day instructions from the Defendant
The Defendant argued that it should be NSW because management was located in Queanbeyan, NSW and if the instructions of management were from NSW then it is as if day to day instructions were received from NSW. The Plaintiff strongly disagreed with that assertion and argued that the instructions came from his construction site, directly from a foreman and construction management because instructions were specific to that construction site and you had to be at the construction site to receive them.
His Honour agreed with the Plaintiff that he did in fact receive day-to-day instructions from foremen that were on site even, though he may have instructions from the Queanbeyan office which was in NSW, but once he attended the site in ACT, that foreman would provide him site specific day-to-day instructions.
d) The location from where the Plaintiff collected material for the purposes of his employment.
Both parties accepted that the defendant would deliver building material to the site that the plaintiff was working from on that day. The Plaintiff argued that the majority of his work was from ACT, then he would collect the material for the purpose of his employment from ACT.
His Honour accepted the Plaintiff’s submission and dismissed the Defendants argument that there was no “usual” location that the plaintiff would collect material from.
e) The location where the Plaintiff receives administrative, human resources (HR) and other decision relating to his employment.
The Defendant argued that there is no single place that could be used where the plaintiff receives administrative, HR and other issues regarding his employment. The Plaintiff argued that the ACT is the place of which he received those instructions. All administration was completed on site, injuries were reported to a safety officer on site, training programs were completed at the office of unions at the ACT and payslips or HR issues were emailed to him.
His Honour considered both arguments and reached a neutral decision because it is true that the plaintiff had no specific place for all tasks to be undertaken from and the plaintiff did not need to attend any place for administrative & HR issues.
His Honour finally considered all five factors as listed by Section 36B(7) of the Act decided in favour of the Plaintiff’s argument that the plaintiff was usually based in the ACT. As a result, the Court was not required to consider the next test as to where the Employer’s principal place of business is located.
This case highlights that it can be a complex task to interpret the legislation and apply the relevant tests. It is important that a solicitor has regard to the employment connection test and is familiar with recent legislation in determining where a claim should be lodged.
If you have suffered an injury at work and are not sure which is the correct jurisdiction you should contact us for advice. We are experts in personal injury law and are happy to provide your initial consultation for free. If we think your claim has merit, we can act for your on a No Win, No Fee basis.