Martin v R J Hibbens Pty Ltd
[2010] NSWWCCPD 83
•4 August 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 | ||||
| APPELLANT: | Bianca Martin | ||||
| RESPONDENT: | R J Hibbens Pty Ltd | ||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-009424/09 | ||||
| ARBITRATOR: | Mr D Minus | ||||
| DATE OF ARBITRATOR’S DECISION: | 3 March 2010 | ||||
| DATE OF APPEAL HEARING: | 27 July 2010 | ||||
| DATE OF APPEAL DECISION: | 4 August 2010 | ||||
| SUBJECT MATTER OF DECISION: | Whether employment connected with New South Wales; section 9AA of the Workers Compensation Act 1987; meaning of “usually works”, “usually based”, and “principal place of business” | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | Oral | ||||
| REPRESENTATION: | Appellant: | Mr B McManamey, instructed by Maurice Blackburn Lawyers | |||
| Respondent: | Mr D A Baker, instructed by Mulcahy Lawyers | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 3 March 2010 is revoked and the following orders made in its place: “1. The applicant worker’s claim for compensation for whole person impairment as a result of injuries to her cervical spine (neck), left upper extremity (left shoulder), lumbar spine (back), and left lower extremity (left ankle) on 31 January 2006 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The referral is to include all documents included in the Application to Resolve a Dispute filed on 18 November 2009 and the Reply filed on 9 December 2009. 2. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.” The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST. | ||||
INTRODUCTION
Section 9AA of the Workers Compensation Act 1987 (‘the 1987 Act’) provides that compensation is only payable under that Act in “respect of employment that is connected with” New South Wales. The question in this appeal is whether the worker’s employment was “connected with” New South Wales, where the injury happened, or, with Queensland, where, it was alleged, she had performed the majority of her work for the employer.
BACKGROUND
The appellant worker, Bianca Martin, worked for the respondent employer and other employers doing general forestry work for several periods between 2003 and January 2006. She generally worked in southeast Queensland, northern New South Wales, or sometimes in Victoria.
On 31 January 2006, Ms Martin was working for the respondent employer spraying weeds on a property known as “Sandilands” at Old Lawrence Way, Tabulam in northern New South Wales, when she stepped into a hole and received various injuries.
By letter dated 7 February 2008, Ms Martin’s solicitors claimed lump sum compensation in the sum of $27,500 in respect of a 20 per cent whole person impairment as a result of her injuries. By letter dated 5 March 2008, the respondent’s workers compensation insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), issued a section 74 notice disputing liability on the grounds that Ms Martin resided in Queensland and that she performed the majority of her work in Queensland. Therefore, the “state of connection” was Queensland.
After issuing previous proceedings in the Commission that were either discontinued (Matter No 7223/08) or struck out (Matter No 2638/09), Ms Martin filed the current Application to Resolve a Dispute (‘the Application’) on 17 November 2009. She claimed lump sum compensation in the sum of $27,500 under section 66 of the 1987 Act in respect of an alleged permanent impairment as a result of injuries to her neck, left shoulder, back and left ankle on 31 January 2006.
In a Reply filed on 9 December 2009, the respondent employer disputed the claim on the grounds set out in QBE’s section 74 notice dated 5 March 2008.
The Commission listed the matter for conciliation and arbitration on 5 February 2010. In a reserved decision delivered on 3 March 2010, the Arbitrator held that Ms Martin was not entitled to recover compensation as a result of her injury on 31 January 2006 because her employment was “not connected” with New South Wales.
The Commission issued a Certificate of Determination on 3 March 2010 in the following terms:
“The Commission determines:
1. That pursuant to section 9AA of the Workers Compensation Act 1987, no compensation is payable under this Act in respect of the Applicant’s claim for permanent impairment as her injury on 31 January 2006 was in respect of employment that is not connected with this State.
2. There is no order as to costs.”
In an appeal filed in the Commission on 30 March 2010, Ms Martin seeks leave to challenge the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. However, in breach of the Registrar’s direction that it be served by 14 April 2010, it was not served until 16 April 2010.
The worker seeks an extension of time under Part 3 Rule 3.2 of the Workers Compensation Commission Rules 2006. The respondent employer has opposed this application on grounds that may have been appropriate if the appeal had been filed out of time. The appeal was filed in time and the only default by the worker’s solicitors was that they did not serve it by 14 April 2010.
At the oral hearing of the appeal, counsel for the respondent employer, Mr Baker, did not abandon his client’s objection to time being extended, but pointed to no prejudice to his client. In circumstances where the default was only a few days and there is (clearly) no prejudice to the respondent employer, I extend the time for service of the appeal until 16 April 2010.
I grant leave to appeal.
THE EVIDENCE
Ms Martin’s evidence is set out in three statements dated 28 August 2008, 27 July 2009 and 25 September 2009.
Ms Martin was born in Nerang in Queensland in 1976 and attended school in that State until the age of 16.
In her first statement, she said that she commenced employment with the respondent employer as a forestry worker in about 2000. She performed general forestry duties, including tree-planting, fertilising and general maintenance of plantations, including backpack spraying of weeds. She generally worked “about the south-east area of Queensland, northern NSW and sometimes in Victoria”.
Ms Martin said that she injured her back when lifting a tray of seedlings whilst working for the respondent employer on 25 August 2005. She had about four weeks off work and then returned to her normal duties.
At approximately 10.30 am on 31 January 2006, Ms Martin attended at a property known as “Sandilands” at Old Lawrence Way, Tabulam in northern New South Wales for work. She was required to spray designated areas. In the course of that activity, she stepped into a hole and fell, sustaining the injuries that are the subject of this claim.
In her second statement, Ms Martin said that, with the respondent employer, she “predominantly worked in NSW”.
She added:
“4. I confirm that since the year 2000 I have worked a number of broken periods of employment. I would work for this employer when he could offer work and there would quite often be a number of months, between these periods, where I would work for whoever was offering work at the time. I[n] any one year I could have 7 or 8 different employers for different periods.”
She said that the “last period” during which she worked for the respondent employer was from “approximately November 2005 to early February 2006” and that that period of employment was “separate to any other period of employment”. She did not accrue “any leave” with the respondent employer, but she was paid “superannuation benefits”. Those entitlements would cease when she left to work for another employer.
When Ms Martin worked in New South Wales, she said that she “would be based in NSW” and accommodation would be provided for her close to the particular block on which she was working. She stated that the “principal place of business” for the respondent employer was in New South Wales.
In her third statement, Ms Martin said that, for each period of employment with the respondent employer, Mr Rob Hibbens would call her “when work was available”. She added:
“3. The employment at Sandilands was nearly concluded and once that job was completed, I was to return to QLD for a short period to work at a property at Gin Gin. It was then my intention to return to NSW. I had been informed by Mr Rob Hibbens that he had signed a lucrative contract and he had at least 2 years of work for me. I had made plans to relocate to NSW to perform this work, which was predominantly in NSW. Just prior to my injury, I had given away all but 2 of my dogs. I had also commenced investigating properties for sale, for the purposes of relocating on a permanent basis to NSW. It was my intention to work for Mr Hibbens for at least 2 years and to then commence her [sic, my] own business in the forestry industry.”
Ms Martin confirmed that she stayed in accommodation on the block on which she was working or at a nearby hotel. Mr Hibbens provided all equipment, which would either be delivered on site or collected by her from his home at Kyogle in New South Wales, which was the respondent employer’s principal place of business.
In her tax return for the financial year ending 30 June 2006, Ms Martin disclosed a total income of $30,467. This income came from work with four different employers. The work with the respondent employer paid $9,391.
The only directly relevant evidence from the respondent employer on the contractual issue raised in the section 74 notice is a letter on the respondent employer’s letterhead signed by Jenny Hibbens and dated 19 February 2008. That letter states:
“BIANCA MARTIN – INJURY 31/1/06 – CLAIM LF 0336332
NSW Work – spray job completed.
Week ending 5/2/06 backpack sprayed 8.5 ha @ $50/ha Sandilands property via Tabulam W/e 29/1/06 backpack sprayed 16 ha @ $50/ha ) Sandilands
and
Ewingar
propertiesW/e 22/1/06 backpack sprayed 19.05 ha @ $50/ha ) W/e 15/1/06 backpack sprayed 12.875 ha @ $50/ha ) W/e 8/1/06 backpack spray 5 ha @ $50/ha ) QLD Work
W/e 30/12/05 backpack spray 23 hrs @ $23/hr Coolalbyn property w/e 25/12/05 move trees 2 hours @ $15/hr Quilties property NSW Work
w/e 18/12/05 move trees 20 hours @ $15/hr Cells property via Walcha QLD Work
w/e 11/12/05 backpack spray 30.5 hrs @ $18/hr
1.5 hrs @ $23/hrCoolalbyn property w/e 4/12/05 backpack spray 6 hrs @ $18/hr
8.5 hrs @ $23/hrCoolalbyn property w/e 27/11/05 survival counts 41 hrs @ $20/hr Electra property w/e 28/8/05 plant 54 trays @ $3, 18 @ $7,
14 hrs @ $15, Supervise 24 @ $1.05Electra property w/e 21/8/05 plant 90 trays @ $3.00, 9 hrs @ $15 Electra property w/e 14/8/05 plant 102 trays @ $7, 21 @ $2.50, 75 trays @ $2.90, run 65 @ $0.40 Coolalbyn property w/e 7/8/05 plant 191 trays @ $2.50 Coolalbyn property w/e 31/7/05 Plant 221 trays @ $2.50,
supervise 134 @ $0.37Coolalbyn property w/e 24/7/05 Plant 242 trays @ $2.50
supervise 182 @ $0.37Coolalbyn property Before this time Bianca Martin worked for us in Queensland only from 19/1/2003 to 25/5/2003.” (emphasis included in original)
THE LEGISLATION
Section 9AA provides:
“9AA Liability for compensation
(1) Compensation under this Act is only payable 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 compensation being payable 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.(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(5) If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if:
(a) the worker is in this State when the injury happens, and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.(6) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention 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.
(7) …”
It is accepted that the relevant terms of section 9AA(3) provide cascading tests for determining the State with which a worker’s employment is connected. First, a worker’s employment is connected with the State “in which the worker usually works in that employment” (the “usually works” test). If that test provides an answer to the question, there is no need to proceed further. If not, one applies the test in section 9AA(3)(b) and looks for the State “in which the worker is usually based for the purposes of that employment” (the “usually based” test). If that test provides the answer, there is no need to proceed further. If not, one applies the test in section 9AA(3)(c) and looks for the State “in which the employer’s principal place of business in Australia is located” (the “principal place of business” test).
In determining whether a worker usually works in a State under section 9AA(3)(a), regard must be had to the worker’s “work history” with the employer and the intention 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 six months (section 9AA(6)).
If no State is identified by any of the three tests in section 9AA(3), a worker’s employment is connected with New South Wales if he or she is in New South Wales when the injury happens and there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same injury (the “location” test) (section 9AA(5)).
THE ARBITRATOR’S REASONS
In a Statement of Reasons for Decision (‘Reasons’) delivered on 3 March 2010, the Arbitrator stated that the tests in section 9AA applied to a worker’s movements whilst they continued to perform work under the same contract of service. If a new contract of service commenced, the State of connection had to be reconsidered, even if the new contract was with the same employer. Therefore, the Arbitrator stated that it was of particular importance to identify the intention of the parties to the employment arrangement at the time it was made, and whether it was intended that the worker would usually work in any one particular State.
In considering the “usually works” test, the Arbitrator stated that the evidence did not disclose the intention of either party as to the anticipated period of employment, or as to its location. The Arbitrator did not consider Ms Martin’s total time with the respondent employer as “temporary work”, as that term is used in the 1987 Act. He stated that all of the applicant’s employment could be characterised in that way, “in the sense of it being for a short period with many employers”. He stated that the information in the respondent employer’s letter of 19 February 2008 provided “an accurate reflection” of Ms Martin’s period of employment with the respondent employer. He also accepted that Ms Martin’s only other period of employment with the respondent employer was from 19 January 2003 until 25 May 2003, and that she worked in Queensland in that period.
Though it is unclear, the Arbitrator seems to have found that the work performed by Ms Martin for the respondent employer between 17 July 2005 and 30 December 2005 was “a single period of employment activity”, and that Ms Martin was then employed in New South Wales backpack spraying from 1 January 2006 until she was injured at the end of that month. He stated that it was clear that Ms Martin spent the majority of her time working in Queensland. He calculated that 64 per cent of her total earnings came from her employment activities in Queensland, and 36 per cent came from her work in New South Wales. He considered that to be a good measure of the “period of her employment and connection with the State”. On that basis, he found that the State in which Ms Martin “usually worked in the employment of a forest worker with the respondent employer was Queensland”.
Having regard to section 9AA(6), the period of Ms Martin’s employment with the respondent employer working in New South Wales “would then be regarded as temporary work of less than 6 months duration and disregarded for the purposes of making a determination of the State of greatest connection”. This accorded with Ms Martin’s statement that, after her work in New South Wales was completed, she would return to Queensland to work at a property at Gin Gin.
The Arbitrator said that that view was further strengthened by Ms Martin’s suggestion that, on the possibility of a two-year contract with the respondent employer, she was severing her connections with Queensland and preparing to move to New South Wales “with the intention of relocating on a permanent basis”. At that time, there would be a need to re-evaluate the State with which Ms Martin’s work was connected. Until that time, the Arbitrator said that the evidence was that Ms Martin’s employment was connected with Queensland. He concluded (at [28]):
“In summary, the Applicant was employed by the Respondent to undertake duties as a forestry worker, including tree planting, fertilizing, back pack spraying of weeds and general maintenance of plantations. I am satisfied on the balance of probability, that the evidence discloses that the State in which the Applicant usually worked in that employment is Queensland. Pursuant to section 9AA of the 1987 Act, the State connected to the workers employment, for the purposes of workers compensation legislation, is then Queensland. Therefore, the Applicant’s claim for permanent impairment due to injury on 31 January 2006 is in respect of employment that is not connected with the State of NSW.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in finding that Ms Martin was not entitled to compensation on the ground that her employment was not connected with New South Wales.
PURPOSE OF THE LEGISLATION
The Workers Compensation Legislation Amendment Act 2002 introduced section 9AA into the 1987 Act. It applies to all applications from 1 January 2006. The Parliamentary Secretary, the Hon Ian MacDonald, stated in the second reading speech in the New South Wales Legislative Council on 4 December 2002, that the purpose of the amendment was to “eliminate the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction”. The principles were intended to ensure that workers:
“working temporarily in another jurisdiction will only have access to the workers compensation entitlements – and common law benefits – available in their home State or ‘State of Connection’ and to provide certainty for workers about their workers compensation entitlements and ensure that each worker is connected to one jurisdiction or another”.
This would remove the need for employers to have two workers compensation policies for “employees working temporarily for up to six months” in another State.
With this intention in mind, other States and the Territories introduced similar legislation to section 9AA, as follows:
· Accident Compensation Act 1985 (Vic) – section 80;
· Workers Compensation and Rehabilitation Act 2003 (Qld) – sections 113 and 114;
· Work Health Act 1986 (NT) – section 53AA;
· Workers Compensation and Injury Management Act 1981 (WA) – section 20, and
· Workers Compensation Act 1951 (ACT) – sections 36A and 36B.
Whilst these provisions were intended to remedy the same problem, each is in slightly different terms. Nevertheless, it is appropriate to consider decisions from the other jurisdictions for guidance on the interpretation of section 9AA.
THE AUTHORITIES
In Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 (‘Hanns’), Gray J of the Australian Capital Territory Supreme Court considered the terms of section 7A (repealed) of the Workers Compensation Act 1951 (ACT), which relevantly provided:
“7A Compensation limited to Territory workers
(1)An employer is liable to pay compensation only in respect of an injury suffered by a worker of this Territory.
(2) For the purposes of this Act, a worker is a worker of whichever Territory or State is--
(a) the Territory or State in which the worker usually carries out the work of the employment concerned;…”
The employer conducted the business of an interstate bus operator from premises in Canberra. Mr Hanns was a driver employed in that business. He drove mainly between Canberra and Sydney, but on occasions, between Canberra and Melbourne. He also drove between Canberra and Thredbo during the snow season and occasionally drove charter buses entirely within the Australian Capital Territory.
On 11 December 1999, Mr Hanns was driving one of his employer’s buses from Sydney to Brisbane when it collided with a car near Taree in New South Wales, killing the three occupants in the car. As a result of the accident, Mr Hanns developed a post-traumatic stress disorder.
The case initially came before a magistrate who held that Mr Hanns was not a worker of the Australian Capital Territory because he spent the majority of his time carrying out the work of his employment in New South Wales.
In upholding Mr Hanns’s appeal, Gray J quoted from the Minister’s Presentation Speech dealing with the relevant amendment. That speech referred to the intent of the amendment to try to achieve (for the benefit of employers) one workers compensation policy for Australian Capital Territory employers who had employees working in more than one State.
His Honour then referred to the dictionary definitions of “usually” and “usual” in the Shorter Oxford Dictionary and the Macquarie Dictionary and held (at [26]) that, given the structure of section 7A(2)(a), “usually” meant “habitual or customary”, or “in a regular manner”. He did not accept the definition applied by the magistrate, and urged by the employer, of “more often than not”. Had the legislature intended such a quantitative test, it could have said so. His Honour remitted the matter for further hearing.
In Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 (‘Knight’), Commissioner Herron of the District Court of Western Australia considered the meaning of “usually works” in section 20 of the Workers Compensation and Injury Management Act 1981 (WA). That section provides that compensation is not payable unless a worker’s employment is “connected with this State”. Section 20(4) adds that a worker’s employment is connected with:
“(4) (a) the State in which the worker usually works in that employment;
(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.
(5) In the case of a worker working on a ship, if no State or no one State is identified by subsection (4), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(6) If no State is identified by subsection (4) or (if applicable) (5), a worker’s employment is connected with this State if —(a) a worker is in this State when the injury occurs; and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(7) In deciding whether a worker usually works in a State, regard must be had to —
(a) the worker’s work history with the employer over the preceding period of 12 months; and
(b) the intentions of the worker and employer,
but 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.”
Mr Knight lived in Perth. He was a supervisor of a remotely operated (underwater) vehicle. The employer offered work to him at various locations, both interstate and overseas, on a job-by-job basis. It also offered him electrical service work at its premises in Perth or in Henderson (WA) or at his own workshop in his home town of Willetton (WA). Mr Knight would either accept or decline. Each job gave rise to a separate contract.
Mr Knight suffered burns in a fire on a ship on 21 May 2006 in Port Phillip Bay, Victoria. During the 12 months prior to his accident, Mr Knight spent 64 per cent of his time working for the employer in Victoria and 36 per cent working for the employer in Western Australia. Over the previous six years, he spent 74.5 per cent of his time working for the employer in Western Australia and 4.6 per cent working for the employer outside Australia. Consistent with Hanns, Commissioner Herron found (at [76]) that “usually works” was not synonymous with where the worker “works for the majority of the time”.
Because of the job-by-job nature of the arrangements, the Commissioner stated that the arrangements did not comfortably fit within section 20(7). As each period of work constituted a separate contract, there was no “temporary arrangement” for the purposes of section 20(7). Each arrangement was permanent in the sense that Mr Knight was required to work on the ship for the duration of the period of work. However, there was no intention that, once Mr Knight completed his work on a ship in Victoria, he would return to Western Australia and continue work or employment with the employer. The Commissioner was therefore unable to determine whether Mr Knight’s employment was connected with either Western Australia or Victoria under section 20(4)(a) (the “usually works” test) and he considered the “usually based” test in section 20(4)(b).
Dealing with “usually based for the purposes of [his] employment”, Commissioner Herron referred to the dictionary definitions of “usual” and “base”. Base is defined in the Shorter Oxford Dictionary as a “town, camp, harbour, airfield, etc., from which (esp. military) operations are conducted and where stores and supporting facilities are concentrated; a centre of operations, a headquarters”. He stated (at [83]) that the expression “usually based for the purposes of that employment” included a camp site or accommodation provided by an employer such as in the mining industry. Where a worker is usually based and where he or she usually works might also coincide.
The Commissioner considered that the matters contemplated by the expression included the matters set out in section 53AA(5) of the Work Health Act 1986 (NT), namely:
· the work location specified in a worker’s contract of employment;
· the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment in relation to the work;
· the location the worker reports to in relation to the work, and
· the location from which the worker’s wages are paid.
The employer argued that, for the same reason that it submitted that Mr Knight usually worked in Victoria (he spent 64 per cent of his time there), he was also usually based in Victoria. Commissioner Herron rejected that submission. After considering each of the matters in section 53AA, the Commissioner concluded (at [89]):
“89 However, and notwithstanding this, I regard the fact that each new job or contract for work commences and concludes in Western Australia, and that each contract for work is entered in Western Australia, is relevant in considering where the [worker] is usually based for the purposes of that employment. Those facts combined with the fact that the [worker] is paid from the employer’s premises in Western Australia, that Mr Ham keeps in contact with the [worker] by telephone from Western Australia, with the further fact that when he is not working on a ship he performs electrical contracting work for the [employer] at its premises in Western Australia, persuades me the [worker] is ‘usually based’ in Western Australia for the purposes of his employment with the [employer].”
Commissioner Herron also considered the meaning of “principal place of business”. He stated that an employer’s principal place of business was not necessarily the same as its principal place of business registered with ASIC under the Corporations Act (Knight at [65]). A business may not be a corporation and therefore not be registered with ASIC. He concluded (at [66]) that “principal place of business” meant “chief, most important or main place of business from where the employer conducts most or the chief part of its business”.
Higgins CJ considered Hanns and Knight in Avon Products Pty Ltd v Falls [2009] ACTSC 141 (‘Falls’). In that case, Avon employed the worker as a sales manager. During the period that caused her injury (May 2007 to 28 March 2008), she was responsible for a defined area in the Australian Capital Territory and she spent eight to 10 hours per day working in that area. She also did “book work”, mostly from her home in New South Wales, but also in the Australian Capital Territory.
The case concerned the application of section 36B of the Workers Compensation Act 1951 (ACT), which is in similar terms to section 9AA of the 1987 Act. His Honour accepted (at [43]) that the test for identifying where a worker “usually works” was not “merely a mathematical exercise”. He held that the magistrate had been correct to hold that the test for the place where a worker usually works in the course of her employment was the place or places which the worker was expressly or by necessary implication contracted to work. That place was the Australian Capital Territory.
Though it was not necessary for his decision, his Honour expressly agreed (at [53]) with the test for “usually based” adopted by Commissioner Herron in Knight.
The following principles can be extracted from the above authorities and are applicable in the determination of cases under section 9AA of the 1987 Act:
(a) regard should always be had to the terms of the contract of employment;
(b) “usually works” means the place where the worker habitually or customarily works, or where he or she works in a regular manner (Hanns at [26]). It does not mean the place where the worker works for the majority of time (Knight at [76]) and is not simply a mathematical exercise (Falls at [43]), though the time worked in a particular location will naturally be relevant. It will also be relevant to look at where the worker is contracted to work (Falls). Regard must be had to the worker’s work history with the employer and the parties’ intentions, but “temporary arrangements” for not longer than six months within a longer or indefinite period of employment are to be ignored. Whether an arrangement is a “temporary arrangement” will depend on the parties’ intentions, which will be ascertained by looking at the worker’s work history and the terms of the contract. A short-term contract of less than six months that is not part of a longer or indefinite period of employment will not usually be a “temporary arrangement” (Knight);
(c) “usually based” can include a camp site or accommodation provided by an employer (Knight at [83]). Where a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so. In considering where a worker is “usually based”, regard may be had to the following factors, though no one factor will be decisive: the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, the location from where the worker’s wages are paid, and
(d) an employer’s “principal place of business” is the most important or main place where it conducts the main part or majority of its business (Knight at [66]). It will not necessarily be the same as its principal place of business registered with ASIC.
SUBMISSIONS, DISCUSSION AND FINDINGS
The “usually works” test – section 9AA(3)(a)
Ms Martin’s counsel, Mr McManamey, submitted that, consistent with Hanns, Knight and Falls, the phrase “usually works” in section 9AA(3)(a) means “habitual or customary”, or “in a regular manner” and that the Arbitrator erred in deciding that it meant the place where the worker spent the majority of her time. Mr Baker submitted that workers usually work where they perform their duties and, while it is not only a mathematical test, the time spent in any particular State is still relevant. Based on the information in Ms Hibbens’s letter of 19 February 2008, he argued that Ms Martin usually worked in Queensland. He said his reasoning was arithmetical and factual.
There are a number of difficulties with Mr Baker’s submissions. They are inconsistent with the principles discussed in Hanns, Knight and Falls. Even assuming that it is appropriate to look at the whole of the relationship between Ms Martin and the respondent employer (which is open to doubt), it is impossible to determine where she “usually” worked. There was no State, or no one State, where she habitually or customarily worked in her employment with the respondent employer in a regular manner. The only reasonable conclusion is that she worked for the respondent employer in Queensland part of the time and in New South Wales part of the time. Therefore the “usually works” test does not provide the answer.
Mr Baker’s submissions have ignored the words “in that employment”. The question arises as to whether these words mean “in that [contract of] employment” or “in that [general area of] employment”, as in “in that area (trade or profession) of work”.
In considering the meaning of “in that employment”, it is appropriate to consider the entitling provisions in the legislation. To be entitled to compensation an applicant must be a “worker” who has received an “injury” to which employment was a substantial contributing factor (sections 9 and 9A of the 1987 Act). An “injury” means a personal injury arising out of or in the course of employment. A “worker” is relevantly defined in the 1998 Act as a person “who has entered into or works under a contract of service…with an employer”.
Section 9AA(1) provides that compensation under the 1987 Act is only payable “in respect of employment that is connected with this State”. Though “employment” is not defined in either the 1987 Act or the 1998 Act, given the definitions of “worker” and “injury”, it can only be a reference to employment under a contract of service or a relationship under a contract of the kind contemplated by Schedule 1 in the 1998 Act. Without such a contract, a claimant has no entitlement to compensation because he or she will not be a “worker” or a deemed worker under the legislation.
Applying this meaning to “in that employment” is not easy in the present case because the evidence is in such an unsatisfactory state. It is known that, based on Ms Hibbens’s letter of 19 February 2008, Ms Martin worked for the respondent employer for several different periods in several different locations. The Arbitrator treated the period from 17 July 2005 until 5 February 2006 as one period or one contract. In view of the unexplained gap in work between 28 August 2005 and 27 November 2005, the evidence does not support that approach.
Ms Hibbens’s letter reveals that Ms Martin worked for the respondent employer for at least three (possibly four) discrete periods:
(a) 19 January 2003 to 25 May 2003;
(b) 17 July 2005 to 28 August 2005, and
(c) 20 November 2005 to 31 January 2006.
In the first two periods, Ms Martin worked exclusively in Queensland. The third involved a period in Queensland and a period in New South Wales. On one view, the third period may have involved two periods: one from 20 November 2005 to 30 December 2005, involving mostly work in Queensland, and a second, from 1 January 2006 to the date of her accident on 31 January 2006, involving work exclusively in New South Wales. Assuming that there were only three periods, I am satisfied that each of those periods involved a separate contract. This is based on the gap between each period, the different work involved in each period, the different locations at which Ms Martin worked, and the different rates of remuneration.
Whether Ms Martin made a new contract for the period from 1 January 2006 or whether she worked under one contract from 20 November 2005 until 31 January 2006 is not explained in the evidence. That Ms Martin’s work from 1 January 2006 involved a new contract is supported by the fact that she did only backpack spraying in New South Wales from that date, but did a variety of duties (some in New South Wales and some in Queensland) from November 2005 until 30 December 2005. She was also paid at a different rate for her work from 1 January 2006. For example, for “backpack spray” in Queensland in the week ending 30 December 2005 she was paid at $23 per hour, but paid at $50 per hectare for similar work in New South Wales in January 2006. It is therefore arguable that she made a new contract of employment when she started work in New South Wales on 1 January 2006. If that is correct, then, arguably, the place where she usually worked “in that [contract of] employment” (emphasis added) was New South Wales.
Against this, however, is Ms Martin’s evidence that the “last period” during which she worked for the respondent employer was from “November 2005 to early February 2006”. This suggests that she considered that period to be one continuous period of work under one contract of employment. The matter is further complicated because she often did not work a full week and there is no evidence of what she did when she finished work during the short weeks. It is not even possible to accurately work out the number of hours she worked in each State because, for several periods, she was paid per hectare, not per hour, and there is no evidence of how long it took to spray one hectare. In the period from November 2005 until the date of the accident, Ms Martin worked for five part-weeks in Queensland and six part-weeks in New South Wales. This evidence does not enable any conclusion to be draw as to where she “usually” worked or whether the period from 1 January 2006 until 31 January 2006 was a separate contract.
In determining whether a worker usually works in a State, regard must be had to the worker’s “work history” with the employer and the parties’ intentions (section 9AA(6)). Mr Baker submitted that the work history revealed that Ms Martin usually worked in Queensland. I do not believe that is correct. Ms Martin’s work history with the respondent employer was intermittent. She sometimes worked in Queensland and sometimes in New South Wales. The inference is that, as in Knight, she worked according to demand and that each of her three periods of work created a new contract of service with a new pay rate depending on the nature of the job. Therefore, I do not believe that Ms Martin’s work history assists in resolving the issue.
The evidence as to the parties’ intentions is also unhelpful. The respondent employer’s intentions are not known because, apart from the letter of 19 February 2008, it has tendered no evidence. Ms Martin’s evidence that Mr Hibbens had signed a contract and had at least two years work for her in New South Wales was of limited, if any, relevance, as it merely related to the possibility of employment in the future and was too vague to be of any probative value. It is known that, had she not been injured, Ms Martin intended to return to work in Queensland for a short period after the completion of her work for the respondent employer in New South Wales, though it is not known if that work was with the respondent employer or another employer.
The exclusion in section 9AA(6) (that regard must not be had to any temporary arrangements not longer than six months) has no application in the present matter. It is intended to operate where a worker usually works under a contract of employment with an employer in one State and, under a “temporary arrangement” with that employer, works in another State for a period of not longer than six months. The assumption in section 9AA(6) is that there is a contract of employment that continues with the same employer and that the place of work changes because of a “temporary arrangement” that requires the worker to work in another State. If the arrangement in that other State is for a period of not longer than six months, it is to be disregarded in determining where the worker “usually works”. That was not Ms Martin’s situation. Her situation was similar (but not identical) to Mr Knight’s. She made arrangements on a job-by-job or period-by-period basis. Her periods of employment were short and depended on demand, but could not be described as “temporary arrangements” within the terms of section 9AA(6). Therefore, whilst they should not be disregarded in determining where Ms Martin usually worked, for the reasons explained above, they do not provide the answer to that question.
In support of his argument that Ms Martin usually worked in Queensland, Mr Baker presented the following analogy. Assume a 20-year relationship between an employer and a worker where the worker spent 19 years in Queensland and then five months in New South Wales. Assume that he or she was injured while working in that five-month period. Looking at the whole of the relationship (the whole of the work history), Mr Baker submitted that the usual place of work would clearly be Queensland.
This submission would be correct if the worker worked for the employer under a contract of employment for a continuous period of 19 years in Queensland and then, as a result of a “temporary arrangement”, worked for that employer for five months, under the same contract, in New South Wales. That is not the situation in the present case. Ms Martin worked for the respondent employer under several different contracts in different locations in different States.
A further flaw in Mr Baker’s argument is demonstrated by an example given by Mr McManamey in reply. Say a worker resigns from a position with a company in Sydney after 10 years service and moves to London to work with a different company. The worker then leaves that employment after a few months and returns to Australia and is re-employed by the same company with whom he or she worked in Sydney, but this time in Queensland on a four-month contract. If the worker received an injury in Queensland in that four month period then, looking at the worker’s “work history” and the length of time the worker worked for the company in New South Wales, the State where he or she “usually worked” would, on Mr Baker’s argument, be New South Wales. Such a result would not accord with the terms of the legislation. The State in which the worker usually worked “in that [contract of] employment” would be Queensland because he or she would be working there under a short-term contract not under a “temporary arrangement” within a longer (overall) period of employment. The conclusion would probably (depending on the terms of the contract) be different if the parties intended the Queensland arrangement to be temporary and the employment relationship to continue in New South Wales at the conclusion of the four-month stint in Queensland.
In conclusion, the “usually works” test does not answer the question because Ms Martin usually worked in two States and there is “no State or no one State” with which her employment was connected. It is therefore appropriate to consider the “usually based” test.
The “usually based” test – section 9AA(3)(b)
Mr McManamey submitted that the facts do not fit this test. Sometimes Ms Martin was based in Queensland and sometimes in New South Wales. In the alternative, he submitted that Ms Martin was usually based in New South Wales in respect of the period from 1 January 2006 until 31 January 2006. Mr Baker submitted that there was no one base and that this test did not apply.
I accept that the correct test for determining where a worker is “usually based” is that set out by Commissioner Herron in Knight (see [53] and [54] above). Unfortunately, due to the lack of evidence, it is impossible to apply that test in the present matter. The evidence is silent as to the matters listed at [54] above. The best that can be said is that, as Mr McManamey submitted, Ms Martin’s base moved with her. It is therefore necessary to consider the “principal place of business” test.
The “principal place of business” test – section 9AA(3)(c)
I agree with Commissioner Herron that an employer’s principal place of business is not necessarily the same as its principal place of business registered with ASIC under the Corporations Act (Knight at [65]). A business may not be a corporation and therefore not be registered with ASIC. I also agree with Commissioner Herron’s conclusion (at [66]) that principal place of business means “chief, most important or main place of business from where the employer conducts most or the chief part of its business”.
Mr McManamey submitted that the principal place of business for the respondent employer is Kyogle. Mr Baker submitted that it depended where the employer performed work for the third parties with whom it contracted and that I would not be satisfied that it is Kyogle.
I am satisfied that the respondent employer’s principal place of business, in the sense of the main place at which it conducts its business, is Kyogle. First, that is Ms Martin’s evidence. Although that is obviously not conclusive, that evidence is entitled to be weighed with the other evidence in the case. Second, Kyogle is the address given on the letter of 19 February 2008. Third, Ms Martin gave unchallenged evidence that Mr Hibbens provided all equipment, which would be either delivered on site or collected by her from “his home in Kyolge”. Last, other than the suggestion that the respondent employer’s principal place of business is where it performed its work, which implies that it had no principal place of business, there is no evidence that the respondent employer had any other principal place of business. It was not suggested that the respondent employer’s principal place of business is in Queensland.
In the absence of any evidence from the respondent employer disputing Ms Martin’s evidence, I am comfortably satisfied that, on the balance of probabilities, the respondent employer’s principal place of business is located at Kyogle in New South Wales. It follows that, as no State or no one State has been identified by the first two tests in section 9AA(3), then Ms Martin’s employment is connected with the State in which the employer’s principal place of business is located. That place is Kyogle and Ms Martin’s employment is therefore connected with New South Wales.
If I am wrong in this analysis and it is considered that it is not possible to determine the respondent employer’s principal place of business, it is appropriate to consider the location test under section 9AA(5).
The “location” test – section 9AA(5)
Applying this test, Ms Martin’s employment is unarguably connected with New South Wales because she was in New South Wales when the injury happened and I am satisfied that there is no place outside Australia under the legislation of which she may be entitled to compensation for the same matter.
CONCLUSION
Having conducted a review on the merits, I have concluded that the Arbitrator erred in finding that Ms Martin’s employment was connected with Queensland. The true and correct position is that “no State or no one State” has been identified by either the “usually works” test or the “usually based” test. Applying the “principal place of business” test, I am comfortably satisfied that Ms Martin’s employment was connected with New South Wales because the respondent employer’s principal place of business was and is in New South Wales, not Queensland or any other State.
If I am wrong in making that finding, and it is not possible to identify the respondent employer’s principal place of business, I am satisfied that Ms Martin’s employment was connected with New South Wales because that was where the injury happened and there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
DECISION
The Arbitrator’s determination of 3 March 2010 is revoked and the following orders made in its place:
“1. The applicant worker’s claim for compensation for whole person impairment as a result of injuries to her cervical spine (neck), left upper extremity (left shoulder), lumbar spine (back), and left lower extremity (left ankle) on 31 January 2006 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The referral is to include all documents included in the Application to Resolve a Dispute filed on 18 November 2009 and the Reply filed on 9 December 2009.
2. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.”
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
4 August 2010
I, PENNY FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
25
3
0