A worker has been allowed to sue in Queensland for damages over an on-the-job injury in the Northern Territory by proving her usual employment was in no particular state.
Lisa Covill – a chef – signed up with Atlas People Pty Ltd in August 2019 on the promise of being able to work on a variety of assignments in different locations and to “see the wide open landscapes” of Australia.
The 25-yr-old’s prior work was all based in the south-east Queensland. Her first assignment for Atlas – a labour-hire company specialising in hospitality services – was in Bateman’s Bay, NSW.
She was told that as long as she did well, there would likely be another contract as Atlas had more contracts than it could fill.
In December 2019 – on her second assignment this time to Daly Waters in the Northern Territory – she sustained an injury in the course of her employment for which she alleged Atlas was responsible.
WorkCover Queensland accepted her application for compensation but refused to respond to her notice of claim for damages because her employment “was not connected with Queensland”.
It argued – for the purposes of s 113(3) of the Workers’ Compensation and Rehabilitation Act – that the NT was the state in which she “usually works”.
Aggrieved by that decision, Covill applied to the Queensland Supreme Court for a declaration as to the existence of the appropriate “connection” so that she could pursue damages beyond the amount of work covers lump sum offer.
She argued the state in which she “usually works” or was “usually based” was Queensland, because she had been signed up by Atlas in Brisbane, payrolled from Brisbane and her employment terms specified “instructions for this role will come to you exclusively from Brisbane”.
Alternatively – she asserted – if there was no particular state in which she usually works or was usually based, her employment was “connected with” Queensland by operation of s 113(3)(c) because Atlas’ principal place of business was in Brisbane.
When the matter came before him, Justice Peter Applegarth observed that “the state, if any, in which the worker ‘usually works’ is not determined by deciding the State in which the worker spends the majority of his or her time”.
Rather, regard “must be had to the worker’s work history with the employer and the intention of the worker and employer”.
WCQ claimed there was no ongoing employment arrangement at all because of the absence of any guarantee by Atlas of further contracts or by Covill to accept any further assignments.
In the court’s view though, there was an expectation and a probability that a further assignment would be offered and accepted if the previous assignment proved satisfactory.
Notwithstanding the strong Queensland element including a provision in the agreement that specified the laws of Queensland, Justice Applegarth was not convinced that it could be considered the place where she “usually works” or was “usually based”.
It was not a case – he noted – that frequently occurs “involving a pattern of work in which the worker is based in one state and works, on occasions, in a neighbouring state”.
Rather, it concerned an employment relationship that promoted offers of work in many different states with the benefit of visiting different parts of Australia while earning an income such that there was no “usual” base or place of work.
In such circumstances and where Atlas’ principal place of business was in Brisbane, Covill’s employment was connected with Queensland by application of s 113(3)(c), and her claim for damages should be allowed to proceed under the WCRA in the state’s courts.
He made the declaration accordingly.
Categories: hospitality worker injury