QLD Workers’ Compensation: Supreme Court clarifies state of connection test

William Deicke

Legal Practitioner

Each state and territory has workers’ compensation legislation that governs the operation of that state or territories’ workers’ compensation scheme. But which scheme governs a Queensland worker who injures themselves whilst working interstate? The relevant legislative provision applicable to this question is s 113 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’), which sets out a number of considerations the court can take into account when determining whether a workers’ employment is “connected” with Queensland. Such considerations include, but are not limited to: –

– Where the worker usually workers in their employment;

– Where the worker is usually based;

– The employer’s principal place of business; and

– The worker’s work history with the employer and the intention of the worker and employer.

This test, commonly referred to as the “state of connection” test, was recently considered by the Supreme Court of Queensland in Covill v WorkCover Queensland [2022] QSC 171.

Facts

The Applicant, Ms. Lisa Tanya Covill, worked for Atlas People Pty Ltd (‘Atlas’) as a chef over two periods, under separate contracts of employment. Ms. Covill’s first assignment for Atlas was in New South Wales from mid-2019 until August 2019. Thereafter, Ms. Covill worked in the Northern Territory from late August 2019.

On 17 December 2019, Ms. Covill sustained an injury in the course of her employment whilst working in the Northern Territory. WorkCover Queensland (‘WorkCover’) subsequently accepted her application for compensation arising out of this incident. Ms. Covill’s statutory claim proceeded apparently without issue. She subsequently elected to pursue a common law claim, serving a notice of claim for damages in 2021. WorkCover then refused to respond to her claim, contending that she was not entitled to damages as her employment was not closely connected with Queensland, pursuant to s 113 of the Act.

Decision

Justice Applegarth ultimately found in favour of Ms. Covill, agreeing that her employment was connected to Queensland as defined by s 113 of the Act.

The court considered the entirety of Ms. Covill’s work history with the employer, and not just the specific ‘contract of employment’ that was in effect as at the date of incident. In this regard, Justice Applegarth opined that: –

“As to work history, s 113(6) of the Act does not provide that regard must be had to the worker’s work history with the employer over a certain period. In the absence of a statutory framework that compels having regard only to a specific period prior to the date in question, it would appear to be a matter for the trial judge to work out, having regard to the particular circumstances of the case, what an appropriate frame of reference is.”

The court also found that notwithstanding terms to the contrary in a “Conditions of Assignment” document signed by the parties, there was both a reasonable expectation and likelihood that Ms. Covill would continue working for Atlas on assignment in various states and territories in the future, not being usually based in one state.

As such, Justice Applegarth concluded that her employment was most closely connected to Queensland, being where Atlas was located.

Conclusion

When considering the state of connection test, regard must be had to the ‘nature of the employment relationship’ between the worker and employer, including earlier work performed under separate contracts of employment, as well as the future intentions of the parties.