*Content in this blog relates to Queensland legislation.
When you are injured during the course of your employment and wish to seek compensation for your injuries, it must be considered which States’ workers’ compensation laws apply.
Each state and territory in Australia has its own workers compensation laws and insurers. In some cases, which law governs your claim will be clear. For example, if a worker usually works in Queensland for an employer whose principal place of business is also in Queensland, then WorkCover Queensland (or a self-insurer) would be the correct insurer and the claim would be subject to Queensland law.
However, there are some employment arrangements where it is not clear which States’ workers’ compensation laws and policy of insurance will apply. In such situation, the state of connection test must be applied.
In Queensland, pursuant to section 113 (3) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”), the state of connection test is as follows:
(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.
The state of connection test is applied with a step by step approach in that if a state of connection cannot be determined by subsection (a) then (b) must be applied and if a state of connection can still not be determined, then (c) will conclude what the state of connection is.
The recent Supreme Court of Queensland decision of Covill v WorkCover Queensland  QSC 171 has provided further direction on how the state of connection test is applied.
Facts in Covill v WorkCover Queensland  QSC 171
The Applicant in the above matter was a chef by trade who was employed by Atlas People Pty Ltd. The nature of the employment involved the employer providing the Applicant with short and long-term contracts in different parts of Australia. This was attractive to the Applicant as she would visit different location in Australia whilst earning an income.
From sometime in July 2019 to late August 2019, the Applicant performed her first assignment is Batemans Bay, New South Wales. After such assignment, the Applicant was offered a further assignment at Daly Waters in the Northern Territory.
The Applicant was provided with a “Conditions of Assignment” document relating to her four to eight week assignment in the North Territory. The employer who was based in Brisbane, Queensland then arranged the Applicant’s travel from Batemans Bay to Daly Waters to commence work on or around 26 August 2019.
The Applicant’s assignment in the Northern Territory was extended and she then sustained injuries during the course of her employment on 17 December 2019.
Submissions by parties in Covill v WorkCover Queensland  QSC 171
It was submitted by the Respondent that the Applicant’s employment was the “discrete independent employment” comprising of the Daly Waters assignment in the Northern Territory alone. Pursuant to the “Conditions of Assignment”, the Respondent alleged that the employer was under “no obligation to offer [the applicant] further assignments” and therefore, the injury occurred in the Northern Territory, the workers’ compensation laws of Northern Territory applied, and WorkCover Queensland was not the correct insurer.
Alternatively, it was submitted by the Applicant that there is a difference between a contract of employment and the employment relationship. Pursuant to section 113 of the WCRA as a whole, it was submitted by the Applicant that the assignment to the Northern Territory should not be considered in isolation of the Applicant’s previous engagements with the employer.
Application in Covill v WorkCover Queensland  QSC 171
In considering this application, the court looked at section 113 (2) of the WCRA, which provides as follows:-
“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”.
This is the basis of the subject Application considering the Applicant was in the Norther Territory when she sustained her injuries.
The court had further regard to section 113 (6) of the WCRA, which provides as follows:
“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”.
Whilst the Respondent relied on the “Conditions of Assignment” where the employer was under “no obligation to offer [the applicant] further assignments”, the Applicant was told that if she went well on the current assignment, “she would likely be offered another one”.
(a) the State in which the worker usually works in that employment
Justice Applegrath concluded that in applying the state of connection test as provided for in section 113(3) of the WCRA, particularly relating to assessing where a worker “usually works”, regard can be had to the likelihood of an employee’s work with the employer in the future. Further he considered it relevant to consider whether there is a pattern of work where there has been a lengthy employment relationship.
In the subject case, the Applicant was and would have been offered to work in many different States with the employer. Justice Applegrath concluded that there was a reasonable likelihood that had the Applicant not been injured, “… she would have been offered and would have accepted other assignment in other parts of Australia”.
It was concluded that the nature of the Applicant’s work “…meant there was no single State in which she habitually or customarily worked or worked in a regular manner”. The court therefore felt that section 113 (3) (a) did not apply.
(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
The Applicant submitted that she was based in Queensland considering that was where her contract was entered into. Further, she would remain in contact with the employer by telephone and email who were based in Queensland and that instructions for her role were given to her from Queensland.
Justice Applegrath however concluded that the Applicant was not usually based in anyone state based on the nature of her employment as described earlier. The court therefore concluded that section 113 (3) (b) did not apply.
(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.
It was concluded in the subject case that the Applicant’s employment was connected to the State in which the employers principal place of business was located, which was in Queensland.
Overall, Justice Applegarth concluded Queensland law applied to the subject case.
Considering the location of our Varsity Lakes office, we see clients who regularly work between the Gold Coast and the Northern Rivers over the border in New South Wales. It is common that our clients encounter this issue, with many of our clients crossing borders as they work. In such circumstances, the state of connection test must be applied.
Each case will be determined on its own set of facts. Should your state of connection after sustaining personal injuries be unclear, we encourage you to contact Turner Freeman Lawyers on 13 43 63 for an obligation free case assessment.
This blog post was prepared by Karla Macpherson, Associate of our Gold Coast office and approved by Ciaran Ehrich, Partner.