Indonesia-based worker entitled to workers' compensation in Western Australia

In this month’s decision of Benson v R P Leisk Pty Ltd [2019] WADC 30, a worker’s employment was held to be connected to Western Australia for the purposes of the state of connection test as defined by the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act).

Employers and insurers are often in a position in which they need to make a decision as to whether a state of connection applies to a worker making a claim for workers’ compensation and this decision is another decision in a line of decisions which assist in interpreting the definition of state of connection.

Background

The worker completed his apprenticeship under the supervision of the employer between 1974 and 1979 in Western Australia. From 1980, he worked for the employer for various periods of time. From October 2006 to October 2015, he was employed as a plumber in Western Australia. He resided and worked in Western Australia from 1974 to 2014, except for 1982 to 1983 when he was working in Sydney and 1990 to 1993 when he worked in Brisbane. He did not work for the employer during those periods.

In early 2014, the employer asked him to carry out work in Indonesia supervising employees carrying out the plumbing in the new Australian Embassy. He agreed to do so.

The employer paid for his airfares, and organised and paid for his accommodation. He remained employed by the employer while in Indonesia. The work was not completed within three months and he was asked to stay for a longer period. The employer’s managing director resided in Western Australia and on three or four occasions went to Indonesia to check on the work. At other times when the managing director was in Australia, the worker still reported to him.

While in Indonesia, the worker arranged with one of his friends to stay rent-free in his house in Western Australia, with his friend paying the property’s utilities. The worker intended to return to Western Australia when the Indonesian job finished and to continue working with the employer in Western Australia.

He contracted dengue fever after he’d been in Indonesia for 11 months.

The decision

The employer argued that s 20 of the Act should not be used to determine whether a worker’s employment is connected with a particular state in relation to work performed overseas, but only in relation to when a worker’s employment is connected with work performed in Australia.

The Court read the explanatory memorandum of the amendments, which brought the state of connection in Western Australia into existence and the Hansard debates on this issue.

The Court considered s 18 of the Interpretation Act 1984 (WA), which also obliges the Court to consider legislation in a manner that promotes the purpose or object underlying the legislation. The Court held that, notwithstanding all of the above, the legislative history and extrinsic materials cannot displace the clear meaning of the statutory text.

Section 20(3) of the Act provides that just because the worker is outside the State when the injury occurs, it does not prevent compensation being payable. The Court held the worker’s employment is connected with Western Australia and compensation under the Act would be payable irrespective of whether the worker was working in another state or overseas.

The Court considered the four cascading tests as set out in s 20. The Court considered it was required to take into account the 12-month work history of the worker and give it such weight as the Court determines but that it was not limited to that 12-month period in considering in which State the worker usually worked and can have regard to a greater work history, particularly in considering what were the intentions of both the worker and the employer. Furthermore, the Court has the discretion as to what work history they should consider beyond the 12-month period. Pursuant to s 20(7)(b), the Court also held that regard must be given to the intention of the worker and the employer, prohibiting the Court from having regard to any temporary arrangement under which the worker works in a State for a period of no longer than six months.

In this case, the Court noted that while the worker had been working overseas for some 11 months before the incident occurred, it was clearly his intention to return to Western Australia. His work history clearly established that he usually worked in Western Australia.

The Court then considered the next test in the event that it was wrong, and considered where the worker was usually based for the purposes of his employment. The Court noted it was not necessarily the place where he lives.

The Court adopted Commissioner Herron’s reasons in Tamboritha Consultants v Knight and said that the determination of this issue involved looking, inter alia, at the work location specified in the contract, where the worker routinely attended to receive directions, the location they reported in relation to the work, the location from which wages are paid and the state in which the contract was entered.

In this case, the Court held that the agreement for the worker to work in Indonesia was entered into in Western Australia, he was paid in accordance with conditions that were entered into in Western Australia, he was paid from Western Australia, and he kept in contact with the managing director of the employer who is based in Western Australia. His work in Indonesia was not to be considered as a separate employment contract but a continuation of his normal employment, albeit it in a different location.

The Court held that it can fairly be said that the worker is usually based in Western Australia.

Finally, the Court accepted the decision of Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh and accepted that the place in which the employer’s principal place of business in Australia is located is the state in which the employer’s business activities are managed or controlled.

The Court stated that, in this case, there was no doubt that this was Western Australia.

What this means for employers and insurers

This clarifies in some respects what happens to workers who live and work overseas for extended periods of time, particularly more than six months.

Where this situation remains unclear is when the employee is employed by a foreign entity over which, arguably, Australian Courts may not have any jurisdiction and against whom Australian Courts may not be able to order compensation to be paid.