Case involves a carpenter who injured his back while working at a building site
The ACT Supreme Court has ruled on the “employment connection test” in a case concerning workplace injury.
In IC Formwork Services Pty Limited v Moir [2023] ACTCA 31, IC Formwork employed Nigel Moir as a formwork carpenter, taking him to various building sites in multiple jurisdictions. These jurisdictions were predominantly in the ACT and NSW.
In 2015, Moir injured his back while working at a building site in Bawley Point in NSW. He commenced proceedings for common law damages in the ACT Supreme Court. IC Formwork denied Moir's entitlement to have his claim determined according to the substantive law of the ACT, which provides that the question of whether a damages claim can be made concerning a work-related injury, and if so, the determination of the claim is governed by the "territory or state of connection."
An issue of territory or state of connection must be determined following the "employment connection test" in s. 36B of the Workers Compensation Act 1951 (ACT).
Moir argued that the proper application of the employment connection test produces the answer that the territory or state of connection for his claim is the ACT. On the other hand, IC Formwork contended that the territory or state of connection is NSW.
The matter reached the ACT Supreme Court, which explained how the employment connection test works. The test has a cascading series of questions starting with the three-stage test in s. 36B(3). The court noted that an answer is only reached if a single territory or state is identified. If the answer is that the worker usually works in two jurisdictions or that there is no jurisdiction where the worker usually works, it is necessary to move on to the second stage of the test. If the answer is that the worker is usually based in two jurisdictions or that there is no jurisdiction where the worker is usually based, it is necessary to move on to the third stage of the test.
Moir asked the court to find that he "usually works" in the ACT, or that he is "usually based" in the ACT, and alternatively, that IC Formwork's principal place of business is the ACT. The trial court found that Moir usually worked in the ACT, and accordingly, the common law workers' compensation claim arising out of the defendant's negligence should be determined by the law of the ACT.
IC Formwork successfully appealed this decision. The appeal court found that Moir had mostly worked in the ACT over the entire period of his employment with IC Formwork. However, during the 12 months leading up to the accident, Moir had worked for 35 weeks at the Bawley Point site. The court noted this was a significant finding for the "usually works" test.
Moir argued that the relevant test does not require focusing on the 12 months before the injury. On the other hand, IC Formwork contended that "a more confined time frame was required", which was limited to his work at Bawley Point in NSW. The court rejected IC Formwork's argument and noted the absence of the timeframe in the requirements of the law. The court further acknowledged that the evidence drawn from the broader period established that Moir was habitually, customarily, mostly and predominantly based in the ACT.
IC Formwork argued that the evidence established no single place from which Moir was expected to operate. However, the court found no foundation in the statute's text or reason in logic for assuming that a worker can only be usually based in the territory is based at a single geographical location within the territory.
The court also found no foundation in the statute's text or reason in logic for assuming that a worker can only be based in the territory if they routinely received day-to-day instructions from the employer at a single geographical location within the territory.
The ACT Supreme Court ultimately ruled that the primary judge's findings regarding the mandatory considerations under the relevant test supported the conclusion that Moir was usually based in the ACT. Accordingly, the court held that under the Workers Compensation Act, the ACT is the substantive law to be applied to the plaintiff's claim for damages.
