I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44

The plaintiff commenced proceedings against his employer in the ACT Supreme Court in pursuit of common law damages arising from a work injury sustained at Bawley Point in New South Wales in May 2015.

The plaintiff alleged that although he was working in NSW when injured, if the whole of his employment arrangement was considered, including his future intended arrangements, then he usually worked in the ACT and the ACT was the territory of Connection for the purpose of determining the substantive law applicable to the proceedings.

The plaintiff succeeded in securing a finding to that effect at first instance, before Elkaim J.

This decision was overturned on appeal.

In making their decision, the ACT Court of Appeal determined that the appropriate frame of reference was 12 months as indicated in s36B(6)(a)(i) of the Workers Compensation Act 1951 (ACT) (the Act). In that context, the plaintiff usually worked in the ACT and in NSW such that there was no single usual place of work for the purpose of the Territory or State of Connection test.

The worker

Mr Moir was an experienced formworker and completed jobs over many years for IC Formwork in both NSW and the ACT.

IC Formwork had premises in Queanbeyan, NSW, just on the other side of the ACT border.

During the whole of the 12 month period from 27 May 2014 to the date of injury on
26 May 2015, Mr Moir worked in NSW, except for a few days of interruption when he injured his ankle and was on an ACT jobsite.

Mr Moir worked at the Bawley Point site for a total period of 27 weeks prior to the week of the injury.

Around the date of his injury, Mr Moir intended to complete the work at Bawley Point in NSW as soon as possible, so he could return to his family in Canberra and continue to work and reside in the ACT. Mr Moir briefly returned after his injury to the Bawley Point site, but was certified unfit to continue.

After the injury, Mr Moir only ever worked in the ACT.

The employment connection test

Section 36B of the Act provides a cascading test to determine which Territory or State a worker’s employment is connected to. Mossop J summarised the cascading nature of the test as follows:

“Where the worker usually works is the most important factor, followed by where the worker is usually based, followed by the employer’s principal place of business. This hierarchy of factors reflects a non-arbitrary means of determining the jurisdiction in which liability arises”.

Usually works

Section 36B(6)(a) of the Act provides that the Territory or State where the worker usually works is to be determined with regard to matters including:

  1. The worker’s work history with the employer over the previous 12 months
  2. The worker’s proposed future working arrangements
  3. The intentions of the worker and employer
  4. Any period during which the worker worked in a Territory or State, but not to any temporary arrangement under which the worker worked in a Territory or State for a period of no longer than 6 months.

The Court of Appeal examined the prevailing authorities and concluded four propositions about the operation of the ‘usually works’ test in s36B(3)(a) of the Act:

  • The test involves an enquiry into what is habitual or customary, rather than where the majority of work time is spent
  • The test does not focus upon where the worker is ‘required’ to work but instead on where the worker actually works
  • If there are discrete contracts of employment at different locations, each of those will not be considered to be a temporary arrangement
  • If working in different jurisdictions is a usual part of the worker’s employment, then each period in a jurisdiction will not amount to a ‘temporary arrangement’.

Appeal decision

The Court of Appeal concluded that the Act compels regard to be had to the 12 month period prior to the date in question, and requires that period to be the focus of the enquiry as to where the worker usually works. The Court said that the Act specified the 12 month period as a ‘focal point’ of consideration, and relevant data about the worker is to be contained within in that period.

In the 12 month period prior to the accident, the plaintiff usually worked (that is, habitually or customarily) in NSW. Even though the work at Bawley Point was a ‘temporary arrangement’, it could not be ignored because it lasted longer than six months.

Even though the ACT was ‘a usual place of work’ for Mr Moir in previous years and intended into the future, so too was New South Wales, with particular reference to the 12 months prior to the injury.

The plaintiff usually worked in both NSW and the ACT, and the Court of Appeal held that the primary judge erred by making a decision about which substantive law would apply without regard to the second and third limbs of the test.

The plaintiff had asked for a ‘finding’ as opposed to a declaration under the Act. As such, the effect of the decision on appeal was to set aside the finding, such that it is open for the parties to proceed to present the remaining issues for determination before the ACT Supreme Court.