WorkCover Queensland v Q-COMP and Lindsay Brothers
Management Pty Ltd and Lindsay Australia Ltd
Date of decision:
Mr Bell SC and Mr Pincus of Counsel,
instructed by Brian Bartley Lawyers for the appellant
Mr Murdoch of Counsel, directly
instructed by Q-COMP
Mr Horneman-Wren and Ms Dann of
Counsel, instructed by Sciaccas Lawyers and Consultants for the second and
third respondents
Key words – Freight transport company – Issue: WorkCover Industry Classification (WIC) for policy of insurance – Appeal
Outcome: appeal allowed – Significant
sections considered:
Section 54 WorkCover must set the premium payable under a policy
Head Note
WorkCover set the premium payable
for the 2006-2007 and 2007-2008 periods of insurance for the policies of
insurance of the second and third respondents (the employer). In doing so,
WorkCover allocated the WorkCover Industry Classification (WIC) 611012 – Road
Freight Transport to the employer’s policies, and provided reasons for this
decision in a written notice dated
IM Lee addressed section 5 of the
gazette notices for the relevant periods of insurance, which provide that
WorkCover must allocate to the employer’s policy the WIC that WorkCover
considers corresponds to or most closely describes the whole of the employer’s
business activity. IM Lee also referred to the ANZSIC Code as extrinsic
material to aid in understanding the WICs in schedule 1 of the gazette notices.
IM Lee accepted WorkCover’s
submission that ‘Road Freight Transport’ includes a business mainly engaged in
transporting freight by road, while ‘Road Freight Forwarding’ includes a
business that mainly engages in contracting to transport goods and arranging
for other business entities to actually transport the goods. IM Lee found that
Q-COMP erred in accepting the employer’s submission that the highest proportion
of wages related to contracting to collect, transport, store and forward goods.
IM Lee rejected the employer’s submission that because the employer undertakes
a wide range of ‘end to end’ activities, including planning and arranging for
collection, transport, warehousing, cold storage and distribution, this meant
that the employer’s whole of business activity was broader than road freight
transport and the WIC most closely describing the whole of business activity
was ‘Road Freight Forwarding’. IM Lee found that the employer applied the
incorrect approach in attributing wages and revenue to ‘freight forwarding’ where
there was some activity other than transportation also involved. IM Lee
rejected the employer’s interpretation of ‘enterprise’ in the ANZSIC definition
of ‘Road Freight Forwarding’ and found that it meant another business entity
rather than the activity being undertaken. IM Lee found that the majority of
revenue and wages was derived from the use of the employer’s own fleet of
vehicles and drivers rather than the use of subcontractors, and further found
that the employer held itself out to the public as a transporter of freight
rather than a freight forwarder.
IM Lee concluded that the employer’s
primary or predominant activity was the actual transportation of freight using
its own fleet of vehicles, and other activities undertaken by the employer were
not the primary activities. Therefore, IM Lee concluded that the WIC most
closely describing the whole of the employer’s business activity was 611012 – Road
Freight Transport, and allowed the appeal.