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Interstate pay-out an ill wind for WorkCoverSA

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A wind farm technician injured on the job in Western Australia and who resides in Queensland has made a successful claim for compensation from WorkCoverSA.

The unusual decision in the Worker’s Compensation Tribunal has highlighted trends in transient workforces and an incapacity within current legislation to deal with it.

The worker, James Miller, was employed by Australian Wind Services Pty Ltd (AWS).

He injured himself in December 2012 while working for AWS as a wind farm installation technician at a property near Geraldton in Western Australia.

He is now incapacitated for work and has incurred medical expenses. WorkCoverSA rejected his claim.

Miller, 40, worked for a short while in South Australia as a labourer on a wind farm at Snowtown and lived for a while in SA.

In mid 2011, however, he moved to Queensland and has lived there ever since.

He has since worked for other companies and contractors in Victoria and WA.

The tribunal was told that while in WA he became aware of an opportunity to work for AWS.

AWS provides skilled labour for work on wind farms.

It meets its labour needs through a mix of part-time and casual employees, providing these services to wind farms all over Australia.

It moves it workforce around to meet the needs of particular sites.

“It is a floating workforce with it generally being understood by workers that they will need to make themselves available for work at the various sites we have,” AWS director Linda Reuther told the tribunal.

The company’s registered office is in Dulwich and the company’s base is in Edithburgh on the Yorke Peninsula.

When Miller made his claim for compensation he was rejected by WorkCoverSA, and then took the case to the tribunal to decide which state workers compensation scheme was liable.

The tribunal said the relevant state “is the one to which the worker’s employment is connected”, a connection that is not so simple to decide.

WorkCover told the tribunal Miller “usually worked in Western Australia, such that that is the end of the matter”.

The tribunal then turned its attention to three tests proposed in the Workers Rehabilitation and Compensation Act.

Firstly: is there a state in which the worker usually works?

The tribunal’s Judge Brian Gilchrist concluded: “I do not think that it can be said that there is a state in which Mr Miller usually works”.

Secondly: is there a state in which the worker is usually based for the purposes of his employment with the employer?

“I do not think it can be said that there is a state in which Mr Miller is usually based for the purposes of his employment with AWS,” Gilchrist concluded.

Thirdly; what is the state in which the employer’s principal place of business in Australia is located?

“The evidence is all the one way. The location of the AWS’s principal place of business is South Australia.,” he said.

And with a bang of his gavel, he ordered: “the Act applies to him and his injury is compensable under it.”

WorkCoverSA said today it would not appeal the decision.

“It’s a relatively new problem of travelling workers,” a spokesman told InDaily.

“The various States are trying to sort it out, but at this stage, the law as it stands can’t sort through the issues.”

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