Hall v Joblink
[2023] VMC 8
•5 June 2023
IN THE MAGISTRATES’ COURT OF VICTORIA
AT BENDIGO
WORKCOVER Division of court
Case No. N10190246
| MARK ANDREW HALL | Plaintiff |
| v | |
| JOBLINK (NSW) PTY LTD | Defendant |
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MAGISTRATE: | B Wright |
WHERE HELD: | Melbourne (Online Magistrates’ Court) |
DATE OF HEARING: | 27 February 2023 |
DATE OF DECISION: | 5 June 2023 |
CASE MAY BE CITED AS: | Hall v Joblink |
MEDIUM NEUTRAL CITATION: | [2023] VMC 8 |
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WORKERS COMPENSATION — Choice of law — ‘Interstate worker’ — Determination of state with which employment is connected — Workplace Injury Rehabilitation andCompensation Act 2013 ss 37, 314 and 315.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr A Ingram KC and Dr J Plunkett | Arnold Dallas McPherson |
| For the Defendant | Ms M Cameron | Hall and Wilcox |
HIS HONOUR:
Introduction
Mr Hall has issued these proceedings arising out of an alleged incident on or about 21 December 2020. It is alleged that while putting on his socks and work boots, he was injured when bitten by a spider (the incident) and further as a result of the physical stresses and strains of his employment with Joblink (NSW) Pty Ltd (Joblink) from 21 December 2020 to 5 January 2021.
Mr Hall seeks a determination or finding that for the purposes of his injury his employment was connected with Victoria, pursuant to s 37 of the Workplace InjuryRehabilitation and Compensation Act 2013 (the Act). Such a determination is required pursuant to s 314 of the Act. This court has a like jurisdiction with the County Court for those purposes, pursuant to s 266 of the Act.
Joblink admits that it employed Mr Hall from 20 December 2020 to 5 January 2021. The parties agree that Joblink conducts a business employing drivers who are supplied to Freightlink (NSW) Pty Ltd (Freightlink). It is agreed that Joblink’s registered address is in Wagga Wagga and its principal place of business address is 8 Lasscock Road Griffith (the depot), both in New South Wales (NSW). Freightlink carts grain and fertiliser from the Griffith region to various destinations in NSW, Victoria, Queensland and South Australia.
Summary of Evidence
The parties tendered a Statement of Agreed Facts (the agreed Statement) and a number of other documents including employment records and payslips from Freightlink. I heard brief viva voce evidence from Mr Hall as to matters which were not agreed and to clarify some issues set out in the agreed Statement.
Between about August 2020 and April 2021, Mr Hall resided at the River Gum Motel in Echuca, Victoria (the motel). He is a qualified B-double and road train driver with appropriate licences. One day he noticed a Freightlink truck nearby. He telephoned a Mr Jason Miller and asked whether there were any vacancies there for drivers. He was told that there was no truck available at that stage. He was later offered a job when a Freightlink truck became available in December 2020. He informed them that he lived in Echuca and was told that this was not a problem as other drivers employed by them lived there as well. He believed that he could operate from Echuca as a base for driving trucks for Joblink. As stated, he commenced employment with Joblink on 20 December 2020 on a three-month probation period.
On Sunday 20 December 2020 he was driven from Echuca to Griffith by a person from the motel. He said he started driving a B-double tipper (the truck) straightaway. On that day he was given the truck and drove from Griffith to Echuca and then from Echuca to Ballan in Victoria where he parked the truck at night and slept there. It was on the next day that he sustained the alleged spider bite. He kept working for Joblink.
On his final day working for Joblink he drove the truck from Griffith to Wumbulgal NSW. The truck was loaded and he left to travel to Geelong. He did not complete the scheduled delivery in the truck but drove the truck to the motel where an ambulance was called and he was taken to Echuca hospital. He has not worked for Joblink since that date.
Mr Hall drove the truck for Joblink for a total of 17 days. He said that the majority of his driving was conducted in Victoria. In the agreed Statement, it is set out that he drove 2,468 kilometres in NSW and 3,331 kilometres in Victoria when working for Joblink. He said that he spent six nights sleeping in the truck in Victoria and three nights sleeping in the truck in NSW. The agreed Statement states he spent five nights sleeping in the truck in Victoria.
In the agreed Statement, he said that he drove the truck carting grain from the Griffith region to various destinations. He would also collect agricultural product such as fertiliser and chicken meal and bring it back to the Griffith depot in the truck. In his evidence he said that from time to time he would also load and deliver fertiliser and chicken meal between Victorian towns as well.
The agreed Statement set out his activities on each of these 17 days that he worked for Joblink. There was a Christmas break and a New Year break involving a total of six nights in which his truck was parked at Echuca, and he did not work at all. He also spent two other nights at Echuca on the eve of those two holiday breaks as well as the night of 5 January 2021. On my calculations, he spent five nights sleeping in his truck in Victoria, three in the truck in NSW and nine at the motel, including his final day of employment, totalling 17 nights.
Otherwise, on every other working day, except for 28 December 2020 and 3 January 2021, he was at Griffith at some part of the day. On each of those 11 working days he also spent some time driving in Victoria. Overall, he drove to many towns in Victoria and NSW.
Mr Hall agreed that Jason Miller and John Myers gave him instructions and directions and spoke to him from the depot in Griffith. All maintenance, service and repairs of the truck were to be conducted at the main depot in Griffith. However, the truck did not have any service or maintenance while he was employed by Joblink. The truck had a wheel repair at the Griffith depot when he was employed by Joblink. He received instructions from John Myers or Jason Miller from the depot by way of phone or text message. He did have face to face dealings with them delivering work dockets, timesheets and his work diary to them at the Griffith depot.
He agreed that he first made a workers compensation claim in Victoria on 23 February 2021. In that claim form he was asked where the injury occurred. He replied that it occurred while working away from his usual workplace. In his evidence he said that his usual workplace was Echuca which was where his truck would be parked.
As a result of a suggestion by WorkCover’s authorised agent, Xchanging, he did make a worker's compensation claim under the NSW legislation. That claim was denied on causation/work relationship bases.
Mr Hall then lodged a further WorkCover claim form in Victoria in respect of the incident on 21 December 2020. By formal notice dated 27 September 2021, Xchanging advised Mr Hall of its decision to reject that claim on the grounds that his employment was not connected with Victoria as well as on causation/work relationship grounds.
In re-examination he said that he did regard Echuca as his place of work as he was only required to go to the depot to submit his paperwork. He was allowed to keep his truck at the motel.
He said that he was given a very brief induction on the first day at the depot. Basically, he was told that he was not allowed to drive using drugs or alcohol and he was given a key to the truck. He said that he would park the truck on weekends at the motel. However, there were only two weekends during his period of employment and they involved the Christmas/New Year breaks. That completes my summary of the agreed Statement and Mr Hall’s viva voce evidence.
The other documents including his employee details, profile and declaration form, payslips and log time sheets do not take the relevant issue any further.
The final evidence in this case was an affidavit of Mr Wedesweiler sworn 24 February 2023. He is the proprietor of the motel when Mr Hall lived there in 2020-2021. He said that Mr Hall parked his Freightlink truck at the motel. Other truck drivers would also park their trucks there.
On his first day of work with Freightlink, Mr Hall had to go to Griffith to collect his truck. Another resident at the motel, Mark Coe, drove Mr Hall to Griffith. Mr Hall then drove the truck back to Echuca.
Mr Wedesweiler recalled the day when Mr Hall came to the motel in the truck and said he was unwell. He had spoken to Mr Hall on the phone and told him he needed to come to the motel and see a doctor. When he pulled up at the motel, he was horrified at the colour of Mr Hall’s foot. He phoned for an ambulance which took Mr Hall to the Echuca hospital. Some three to five days later, two people came and took the truck away from the motel.
That completes my summary of the evidence in this case.
Legislative Analysis
The appropriate statutory provision in this case is s 37 of the Act, the relevant parts of which are as follows:
(1) There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.
(2) The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.
(3) A worker’s employment is connected with—
(a) the State in which the worker usually works in that employment; or
(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.
…
(6) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer over the preceding 12 months and the intentions of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
…
Further, as these proceedings involve s 37 of the Act, this court must determine the State with which the worker’s employment is connected in accordance with that provision and cause that determination to be entered in the records of the court.[1]
Submissions
[1]See Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 314(1)(a)-(b),
The Plaintiff
Counsel for Mr Hall in written submissions stated that I should find that his employment with Joblink was connected to Victoria because he ‘usually worked’ in Victoria or because he was ‘usually based’ in Victoria. They refer to a number of aspects of the evidence in this case in support of their submission.
Of particular importance was that he only applied for the job with Joblink in the first place on the basis he could park his truck at the Rivergum motel in Echuca on weekends rather than having to return it to the depot in Griffith, NSW.
They submitted he understood the job would be based in Echuca. They also highlighted the fact that he spent three of his nine nights on the road in NSW and six in Victoria during his whole period of employment. In that time, he drove approximately 2,400 kilometres in NSW and 3,300 kilometres in Victoria. They referred to his workers compensation claim form in which he stated his ‘usual workplace’ to be in Echuca on the basis that was where he parked his truck whilst not working.
Counsel for Mr Hall refer to a decision of mine in Woodgate v Busicom Pty Ltd, (MCV, Wright M, 13 February 2009) (Woodgate). That case concerned s 80 of the Accident Compensation Act 1985, the equivalent provision of the present s 37 of the Act. ln that case, the worker injured his back while undertaking a job in Victoria which was one of six discrete jobs he did for that employer with each one lasting a limited period. Although the employer in that case submitted that the period of employment should be looked at in its entirety, that is all six jobs looked at collectively, I found that the relevant employment was the discrete job performed in Victoria during which the injury occurred.
Further, s 80 of the Accident Compensation Act 1985 was also considered by the Supreme Court of Victoria in Wadley vRon Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102 (Wadley). That case also involved a truck driver who worked both in Victoria and NSW. However, they pointed out that the worker in that case spent a considerable amount of time at his employer’s depot in NSW which was different to the facts of this case. They submitted that the decision should be distinguished on its facts.
More importantly in that case, Williams J stated in relation to the construction of the term ‘connected’ that:
Whilst the matter is not the subject of binding authority, consistently with those dictionary definitions, the expression ‘usually works’ in comparable provisions in other States and Territories has been interpreted on the basis that ‘usually’ means ‘customarily’ ‘frequently’ or ’regularly’, and does not involve a quantitative test.[2] Indeed, sub-s 80(3)(b) appears to contemplate that there might be two States in which the worker ‘usually works’ within the meaning of sub-s (a). If the comparison were quantitative, it is difficult to see how two States could each qualify.[3]
[2]Hanns v Greyhound Pioneer Australia Ltd (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 8 February 2006); Tamboritha Consultations Pty Ltd v Knight [2008] WADC 78.
[3]Wadley vRon Finemore Bulk Haulage Pty Ltd (Ruling), [2013] VSC 102, [22].
Again, s 80 of the Accident Compensation Act 1985 was further considered by the Victorian County Court in East v AWMA Pty Ltd and Victorian Workcover Authority [2013] VCC 637 (East). In that case the worker lived in NSW and ‘usually worked’ in both Victoria and NSW. His contract of employment stipulated his place of employment as Victoria. The employer directed his work from Cohuna in Victoria and the worker attended both the Cohuna base and the Deniliquin, NSW depot in the course of his work.
Judge Carmody set out considerations to be weighed in determining ‘usually based’ for the purposes of s 80(3)(b) of the Accident Compensation Act 1985. He referred to:
(a) the location in the contract of employment,
(b) the location the worker routinely attended in the course of his employment to receive instruction, material and equipment,
(c) the location where the worker reported in relation to his employment and
(d) the location from where his wages were paid.[4]
His Honour ruled that the worker’s employment was connected with the State of Victoria because he was usually based at the employer’s head office in Cohuna for the purposes of that employment.
[4]East v AWMA Pty Ltd and Victorian Workcover Authority [2013] VCC 637, [35].
In summary, Counsel submitted that Mr Hall's employment was connected to Victoria. They point out the fact that he resided throughout his period of employment with Joblink in Victoria although spending a minority of nights in his truck cabin outside Victoria. His understanding (which was not disputed in evidence by Joblink) was that his job was ‘based in Victoria’. Joblink permitted him to spend the significant majority of his nights of his employment parking his truck near the motel in Echuca. He only took the job with Joblink because he could continue to be based in Victoria. He did the majority of his driving for Joblink (almost 60 per cent) within Victoria. They submitted that, most importantly, he sustained injury in Ballan, Victoria when he put on his work boots and socks.
Counsel for Mr Hall concluded by submitting that Mr Hall ‘usually worked’ in Victoria for Joblink or in the alternative, if it were thought that no State or no one State could be identified under s 37(3)(a) of the Act, then for the purposes of s 37(3)(b) Victoria was the State in which he was ‘usually based’ for the purposes of his employment with Joblink. They submitted that on the facts of the case s 37(3)(c) had no role to play as one or the other previous provisions in s 37(3) were determinative of the claim.
The Defendant
In her lengthy submissions, Counsel for JobLink referred to the fact that the only formal claim for workers compensation in this case related to the incident and not the ‘physical stresses and strains of his employment from 21 December 2020 to 5 January 2021’. She raises what is known as a ‘Robinson-type’ defence.[5] Although that issue has been pleaded in the defence, I have not been asked to consider this point at this stage. However, I will comment on that aspect later in this Decision.
[5]See Robinson v SPI Electricity Pty Ltd [2012] VMC 30.
She submits that the appropriate test for establishing the state of connection provided by s 37(3) of the Act is a cascading test and in applying that test:
It is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer, it is necessary to move on to the next test.[6]
[6]Avon Products Pty Ltd v Falls [2010] ACTCA 21, [10], in relation to an identical provision in ACT legislation.
Counsel for Joblink then made submissions as to the meaning of the phrase ‘that employment’ referring to Woodgate.[7] She noted that the worker’s claim form and pleadings as to the date/s of injury as well as the terms of and conditions of the worker’s agreement as a subcontractor with the employer, were relevant in determining the meaning of the phrase ‘that employment’. She also noted that the worker’s pre-injury work situation should be the focus of an inquiry under the equivalent of s 37(3) of the Act, in light of the focus on the pre-injury situation in the equivalent of s 37(6).
[7]Woodgate v Busicom Pty Ltd, (MCV, Wright M, 13 February 2009).
In relation to the meaning of ‘usually’ in the context of s 37, she noted that this was considered by Justice Williams in Wadley[8] as meaning ‘customarily’, ‘frequently’ or ‘regularly’, and does not involve a quantitative test. She observed that the fact that the provision contemplates that there might be two States in which the worker usually works suggested against a quantitative test.
[8]Wadley vRon Finemore Bulk Haulage Pty Ltd (Ruling), [2013] VSC 102, [22].
Counsel for Joblink then summarised the facts in both Wadley[9] and East[10] and in which both judges determined that the worker in each case ‘usually worked’ in both NSW and Victoria. She noted that Judge Carmody in East further observed that ‘whilst the mathematical calculation of days worked is not determinative of where a worker usually works, it is a factor to take into account’.[11]
[9]Ibid.
[10]East v AWMA Pty Ltd and Victorian Workcover Authority [2013] VCC 637.
[11]Ibid [28].
It was then necessary for both judges in Wadley and East to determine where the worker was ‘usually based’ pursuant to s 37(3)(b) of the Act. In East, Judge Carmody took into account the four considerations set out in paragraph [32] above. He found in that proceeding the worker was usually based at the employer’s head office in Cohuna, Victoria and therefore his employment was connected with Victoria pursuant to the equivalent of s 37(3)(b).
Counsel submitted Justice Williams in Wadley took into account the same four considerations but was unable to identify one State that the worker in that proceeding was ‘usually based’ pursuant to the equivalent of s 37(3)(b) of the Act. She found that he was usually based at the NSW depot where he attended for a number of reasons, including generally commencing and finishing work there and obtaining instructions from the supervisor there. He also spent a number of hours of a shift loading and reloading his truck in NSW and delivered completed paperwork there. He was also usually based in Wodonga as he had been employed and trained there, and reported to a supervisor there. He obtained resolution for any problems from his senior manager there and he was paid from there. She also noted that he was usually based in Victoria in the sense that his truck provided him with the mobile facilities required for the performance of his work given its particular nature. He had spent many hours driving, sleeping and eating in Victoria during each 12-hour shift.
Counsel referred to a Queensland decision in Ferguson v WorkCover Queensland [2013] QSC 78 (Ferguson) where the same four factors were considered as to where a worker was usually based. Applegarth J noted that the place in which the employer is based may not be the same place in which the worker is based for the purposes of that employment. However, the location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.[12]
[12]Ferguson v WorkCover Queensland [2013] QSC 78, [36].
Counsel summarised by submitting that beyond the basic principles already outlined in the submissions where the worker ‘usually works in that employment’ or is ‘usually based for the purpose of that employment’ will be dependent upon the facts of each particular case.
Counsel submitted that for the purposes of s 37 of the Act the words ‘that employment’ means the workers employment prior to the incident on 21 December 2020 at 6:30am referring to my ruling in Woodgate set out in paragraph [37] above.[13]
[13]Woodgate v Busicom Pty Ltd, (MCV, Wright M, 13 February 2009).
As a consequence, Counsel notes that Mr Hall had only worked for Joblink for less than 24-hours prior to the incident. In that time his employment activities were limited to being driven from Echuca to the Griffith depot, undergoing an induction and signing various employment papers there. He was given a fuel card and the keys to the already loaded NSW registered truck. He then drove the truck to his home at Echuca and then on to Ballan in Victoria arriving at about 10:25pm. He slept in the truck that night and suffered the spider bite while getting dressed the next morning. She submitted that it is irrelevant he sustained this spider bite in Victoria for purposes of determining whether his employment was connected to Victoria other than pursuant to s 37(5) of the Act which can only be considered if no State can be identified pursuant to s 37(3).
Counsel submitted that the balance of the period of his employment with Joblink and the intention of the parties as to the future of his employment are also relevant though the pre-injury employment is of more importance.
Counsel submitted that overall, the evidence supported her submission that Mr Hall usually worked in both NSW and Victoria. He carted the grain from Griffith to various destinations in both in NSW and Victoria. He also had to collect some agricultural products in Victoria bringing them back to the Griffith depot as well as to some Victorian sites at times. It was not disputed that he drove a longer distance overall in Victoria than NSW (57 per cent compared to 43 per cent respectively) as well as five nights sleeping in the truck in Victoria and three nights in NSW during the total employment period.
Counsel agreed that Mr Hall was permitted to, and did, park his loaded and unloaded truck at Echuca on the weekends. He received his directions and instructions in relation to employment from his superiors by telephone and text message from Griffith. The majority of the servicing and maintenance of the Freightline/Joblink trucks was undertaken at the Griffith depot. In fact, Mr Hall’s truck was repaired on one occasion at the Griffith depot. He delivered the relevant paperwork to the Griffith depot and his wages were processed and paid out of that depot as well.
Counsel for Joblink submitted that overall, there was no one State which could be regarded as the State in which he usually worked in his employment with Joblink. He usually worked in both NSW and Victoria. It was therefore necessary to proceed to consider where he was usually based for the purposes of that employment pursuant to s 37(3)(b) of the Act.
Counsel for Joblink submitted that Mr Hall was usually based in NSW or alternatively was usually based in both NSW and Victoria. She repeated the aspects of his evidence referred to in paragraphs [47]–[48] above. Further, there was no evidence of any written contract of employment between the parties, and that Mr Hall gave evidence he understood that Joblink was based in Griffith.
Mr Hall said he believed he was operating from an Echuca base and that his usual workplace was Echuca. However, Counsel for Joblink submitted that the fact he was allowed the convenience of parking the truck at the motel in Echuca did not mean that his employer should be regarded as usually based in Victoria. She referred to Avon Products Pty Ltd v Falls [2010] ACTCA 21 (Falls) in which the ACT Court of Appeal stated that something more than a convenient place for part of a worker’s duties to be carried out is required before it can be said that their residence was their base in an employment sense.[14] Counsel for Joblink observed that Mr Hall only claimed to park his truck there and did not perform any other employment tasks at Echuca. However, I believe that in his evidence he did say that he completed some of his employment paperwork at his Echuca motel. Further, the Court of Appeal in Falls said that it might be said while working in her sales district her vehicle was her base. They stated that what would have particular reference is the provision by the employer of a place from which the worker is expected to operate.[15]
[14]Avon Products Pty Ltd v Falls [2010] ACTCA 21, [32].
[15]Avon Products Pty Ltd v Falls [2010] ACTCA 21, [32].
The fact that Mr Hall gave evidence he understood his employment to be based in Echuca should be given little if any weight in this case. Contrary to his counsels’ submissions, his place of residence was of no relevance to where his employment was usually based pursuant to s 37(3)(b) of the Act. He simply chose to live in Victoria and was permitted to park his truck there on weekends and during holiday periods as a convenience. It was certainly not a condition of his employment by Joblink that he should do so.
Counsel for Joblink noted the location at which a worker routinely attends during employment to collect materials or equipment and from where he receives directions is highly relevant to determining where he is ‘usually based for the purposes of his employment’ (see, Ferguson at [36]). In the present case, this place was Griffith, NSW.
She submitted that if I determine his employment was usually based in both NSW and Victoria then I must proceed to consider s 37(3)(c) of the Act to determine the State of connection.
Counsel for Joblink noted that in the agreed Statement it was agreed that Joblink’s principal place of business was located at 8 Lasscock Road in Griffith, NSW. There was no other evidence to suggest that its principal place of business was located anywhere other than the depot in Griffith. Pursuant to s 37(3)(c), he had no entitlement to compensation under the Act.
Submissions in Reply
In their submissions in reply, Counsel for Mr Hall submitted that in determining where Mr Hall ‘usually worked’ or was ‘usually based’, the court need only examine his movements between the 20 and 21 December 2020 prior to the incident.
They noted that pursuant to s 37(6) of the Act, regard must be had to the ‘intentions of the worker and the employer’. In considering that aspect it is of some significance that he parked his truck in Victoria on the weekends. They also noted that in the context of there being no fixed place of employment his unchallenged evidence that he understood he was based in Echuca was compelling evidence he was in fact based in Victoria.
Although not determinative of the case, they submitted that it was of prime significance that the injury was sustained in Victoria. Further, they submitted that Victoria was the State in which the predominant work he performed in his employment prior to the incident. Thus, they submitted that Victoria is the State connected with his employment for the purposes of the current proceeding.
Finally, Counsel for Mr Hall submit that Mr Hall is not forum shopping. He is entitled to seek coverage under the Act and is validly entitled thereto. The defendant's submission, premised upon the need only to examine his movements between the 20 and 21 December 2020, was contrary to the applicable legislation. The majority of his work was undertaken in Victoria where his understanding was that his employment was located in Victoria which was where the injury occurred.
Reasons for the Decision
I now proceed to deliver my reasons for the decision. Firstly, I would like to deal with what I regard as being subsidiary arguments.
The defendant argues that I should take into consideration the fact that iCare Insurance and Care NSW (iCare) did not identify State of connection as a reason for its rejection of Mr Hall's NSW worker’s compensation claim. I do not accept the defendant’s submission. There has been no determination in NSW that Mr Hall’s employment is connected there pursuant to s 316 of the Act. Also, it has not been argued that, and there is clearly not, any issue estoppel or res judicata in this case. In any event, I do not know what information, or lack of information, that iCare had in considering Mr Hall’s workers compensation claim there.
Counsel for Mr Hall submitted that a relevant factor is the fact that he was injured in the incident in Victoria, rather than NSW. I reject that submission as well. The place where the injury happened is a relevant factor pursuant to s 37(5) of the Act. However, s 37(5) is only relevant if no state is identified under ss 37(3) or 37(4). As will be seen later in the course of this decision, I am able to determine these proceedings pursuant to s 37(3).
Both parties agree in this case that the test for establishing State of connection in s 37(3) is a cascading test. Further, I take into consideration the principles in Falls set out in paragraph [36] above.
In considering s 37(3) of the Act, it is necessary to consider the meaning of the words ‘that employment’ in s 37(3)(a) and 37(3)(b). Both parties agree that the prime consideration is Mr Hall's employment prior to the incident on 21 December 2020 at 6:30am, noting his employment only began on the previous day after arriving at the Griffith depot at about 12.30pm. However, both parties agree that ‘regard must be had to … the intentions of the worker and employer’.[16] Those intentions are evidenced by the events and the dealings of the parties over the balance of the period of employment until he ceased work on 5 January 2021.
[16]Workplace InjuryRehabilitation and Compensation Act 2013 (Vic), s37(6).
It is also necessary to consider the meaning of the word ‘usually’ as set out in ss 37(3)(a) and 37(3)(b) of the Act. Counsel for Mr Hall does not dispute the defendant’s submission that I should apply the principles set out by Justice Williams in Wadley as referred to in paragraph [38] above.
The first issue to determine is whether I can determine the State in which he usually worked in that employment pursuant to s 37(3)(a) of the Act. If I am unable to identify such a State or no one State under s 37(3)(a), then I must move on to a consideration as to the State in which the worker is usually based for the purposes of that employment.
Turning to the facts of this case and looking at the pre-incident employment in isolation, Mr Hall worked in both NSW and Victoria. He arrived at the Griffith depot at about 12.30pm after being driven there from Echuca. After completing some paperwork and a short induction, he was given a loaded truck which he then drove to Echuca where he lived. There is no evidence as to what he did when he arrived at Echuca. In any event, he left later that day and drove to Ballan in Victoria where he slept in his truck overnight prior to the incident. As I pointed out above it is irrelevant that he was actually injured in Victoria in considering s 37(3)(a) of the Act.
It is obvious that he drove a considerable distance in both Victoria and NSW on those two dates. He actually worked in both States. Whether or not he drove a longer distance in Victoria or NSW in those two days, I do not believe it can be said that he ‘usually’ worked in Victoria or NSW in those two days in the sense that he ‘customarily’, ‘frequently’ or ‘regularly’ worked in either of those two States as opposed to the other State. As stated above, the test is not a quantitative one.
I now have regard ‘to the intentions of the parties’. In this context both parties made submissions based on Mr Hall’s employment activities and situation duties between 21 December 2020 and 5 January 2021.
Mr Hall continued to actually work in both Victoria and NSW. It was agreed that in total he drove 3,331 kilometres in Victoria and 2,468 kilometres in NSW. He spent slightly more nights on the road in Victoria than he did in NSW. As observed by Judge Carmody in East the mathematical calculation of days worked is not determinative of where he usually works but it is a factor to take into account. In the circumstances of this case, it could not be said the issue of distance or nights meant he usually worked in Victoria as opposed to NSW.
Mr Hall agreed that the defendant directed his work giving him instructions from in or about Griffith, NSW. He attended there on almost every working day for work purposes. Most of these loads were taken from the Griffith area and delivered in Victoria and NSW. In addition, he loaded up from time to time in Victorian towns and delivered the items to the depot in Griffith or occasionally to other towns in Victoria. His relevant paperwork was delivered to the Griffith depot where his wages were processed and paid out.
Mr Hall agreed he was supervised, managed and directed in his work from the Griffith depot. His truck was repaired once in Griffith. There was no contract of employment setting out that is place of employment was in either Victoria and/or NSW.
In his worker’s compensation claim form, Mr Hall set out that his usual workplace was the motel where he lived at in Echuca. This was on the basis that he was allowed to park his truck there on weekends and holiday periods rather than take it back to Griffith. The fact that he was allowed to park the truck from time to time in Echuca does not mean his ‘usual workplace’ was in Victoria.
In all the circumstances I find that he usually worked in both Victoria and NSW. As no one State is identified under s 37(3)(a), then I must consider where he was ‘usually based’ for the purposes of that employment pursuant to s 37(3)(b).
If I consider the limited period of employment prior to the incident, it is difficult to see how he was usually based in Victoria for purposes of that employment. On the previous date he had attended the depot in Griffith, undergoing a short induction and completing employment documents prior to leaving the depot in the loaded truck. As stated, Mr Hall stopped at the motel in Echuca for reasons unknown to me before driving onto Ballan in Victoria where he spent the night.
However, both parties agree that I should have regard to the intentions of the worker and the employer as to the future of his employment as evidenced by what occurred in the period up to the cessation of employment on 5 January 2021.
In this regard I also take into account the factors set out in paragraphs [70]-[73] set out above. Counsel for Mr Hall refer to his understanding that his job was ‘based in Victoria’ which is why he took on the job with the defendant. However, such an understanding was more that his place of residence was to continue to be based in Victoria rather than the employment itself being based in Victoria. I do not accept that such an honest and genuine belief would make his employment based in Victoria. The only employment activities undertaken at his place of residence would appear to be limited to maybe occasionally completing his employment paperwork there.
As Justice Williams pointed out in Wadley, it could be said that his employment was usually based in Victoria in the sense that ‘ … his truck provided him with the mobile facilities required for the performance of his work, given its particular nature’.[17]
[17]Wadley vRon Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102, [33].
Both Applegarth J in Ferguson and Judge Carmody in East refer to the fact that the location at which the worker routinely attends during the term of employment to receive directions or collect material or equipment may be highly relevant.
In the present case all this occurred in NSW save for the possible exception that occasionally Mr Hall would collect material such as chicken meal or fertiliser from some premises in Victoria and occasionally would deliver that material to other premises in Victoria. However, there was nothing to indicate that those points of collection or delivery in Victoria were owned or operated by the defendant as opposed to a third-party customer or client.
Importantly in this case, as opposed to the factual situations in East and Wadley, there is no evidence that the defendant had any base, depot or premises in Victoria where Mr Hall would attend save for the circumstances set out in the previous paragraph. However, the truck was a base for the performance of his duties in Victoria.
Further, as set out above, Judge Carmody in East looked at three further considerations to be weighed in determining where a worker is usually based. He referred to the location in the contract of employment, where he reported in relation to his employment and the location from where his wages were paid. In the present case all this occurred in NSW, and more particularly in Griffith.
Overall, I am unable to identify the one State where he was usually based for the purpose of his employment pursuant to s 37(3)(b) of the Act. As I have expressed above, there are relevant factors going to his employment being ‘usually based’ in both Victoria and NSW. It could not be said that he ‘customarily’, ‘frequently’ or ‘regularly’ was based in one State as opposed to both States. The test is not a quantitative one.[18]
[18]See Wadley vRon Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102, [22].
Upon my finding that s 37(3)(b) of the Act does not determine Mr Hall’s employment connection with Victoria I now must consider s 37(3)(c), that is the State in which his employer's principal place of business in Australia is located. In the agreed Statement the parties agree that the defendant’s principal place of business is in Griffith, NSW. In their submissions, Counsel for Mr Hall make no separate submission in relation to s 37(3)(c) but rather say that it is not necessary to consider that provision on the basis that the two previous paragraphs are determinative of his claim. I have already ruled on those two paragraphs.
In the circumstances, I find that as the defendant’s principal place of business in Australia is in Griffith, NSW. His employment is therefore connected with NSW and not Victoria.
Therefore, I now determine that NSW is the State connected with Mr Hall’s employment with Joblink for the purpose of these proceedings pursuant to s 314 of the Act.
Even if I considered the alternative allegation that the injury occurred over the period from 21 December 2020 to 5 January 2021, it seems to me that without formally ruling on the point, I would reach the same decision as to the s 37 issue for the reasons I have set out.
I now invite submissions from both parties as to the appropriate orders to be made in these proceedings.
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