Recently, the Court of Appeal in Perth handed down a decision in the matter of Ethnic Interpreters v Sabri-Matanagh [2015] WASCA 186, which involved an important clarification of the law governing jurisdiction in disputes over workers' compensation claims.
A further decision on a dispute involving the application of jurisdictional principles (s20 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act)), was delivered by Keen DCJ, in Goldman v Ribshire Pty Ltd [2015] WADC 155 in December 2015.
This claim turned very much on its particular facts and unlike the Ethnic Interpreters case, His Honour was required to do no more than apply the already established legal principles in order to determine the case.
The dispute was determined on the basis of the first limb of s20 of the Act, with the result that the employment was found to be connected with WA because that was where Mr Goldman "usually worked" for the purpose of the employment in question.
In this case though, Mr Goldman lived in Queensland and sought to persuade the court that his employment in WA should be regarded as temporary. He also sought to establish an intention that he would ultimately return in his employment to Queensland, or an alleged promise by the employer to that effect.
His Honour found otherwise. In particular, if intent was to be of any relevance, it would have to be mutual, rather than simply that of the worker, and there was no such mutual intent established in this case. There was no doubt that Goldman was in fact working in WA at the material time and that, largely determined the dispute.
The Goldman decision, the recent decision in Ethnic Interpreters and its forerunner, Tamboritha Consultants Pty Ltd, cover most of the ground relevant to the determination of jurisdictional disputes by reference to s20 of the Act. All however involved determinations as between state jurisdictions. The same provisions are however regularly used to determine the "state of connection" when work is being carried out overseas, or at least not wholly within Australia. Here, in the writer's opinion, the application of the same principles becomes considerably less obvious.
The (still barely) recent review of the WA Act leading to a report that was released early last year included proposals for changes that would deal specifically with jurisdictional issues not confined within Australia. The growth of employment by WA companies, either wholly or mainly outside Australia has been notable in recent years, and continues. It is therefore to be hoped that these legislative proposals will see the light of day soon.
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