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.