Page v Workers Compensation Nominal Insurer
[2021] NSWPIC 445
•4 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Page v Workers Compensation Nominal Insurer [2021] NSWPIC 445 |
| APPLICANT: | Chloe Page |
| FIRST RESPONDENT: | Super Car Rides Pty Ltd |
SECOND RESPONDENT: | Workers Compensation Nominal Insurer |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 4 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses for an injury to the lumbar spine, shoulders and a psychiatric injury which occurred in New South Wales; worker travelled to towns and cities on the eastern seaboard of Australia in her work for the first respondent; whether worker entitled to benefits under the Workers Compensation Act 1987 (1987 Act) while working and being injured in New South Wales; whether worker’s employment is connected to the state of New South Wales as required by section 9AA of the 1987 Act; reference to Martin v RJ Hibbens Pty Ltd and Workers Compensation Nominal Insurer v O’Donohue; Held – worker not entitled to benefits under 1987 Act merely by being injured while working in New South Wales; worker failed to establish that she usually works or is usually based in New South Wales in her employment with the first respondent; first respondent’s principal place of business in the state of Queensland; awards for the first respondent and second respondent. |
| DETERMINATIONS MADE: | 1. Pursuant to section 9AA (3)(a) of the Workers Compensation Act 1987, the applicant does not usually work in the state of New South Wales in her employment with the first respondent. 2. Pursuant to section 9AA (3)(b) of the Workers Compensation Act 1987, the applicant is not usually based in the state of New South Wales for the purposes of her employment with the first respondent. 3. Pursuant to section 9AA (3)(c) of the Workers Compensation Act 1987, the first respondent’s principal place of business in Australia is located in the state of Queensland. 4. The applicant’s employment with the first respondent is not connected with the state of New South Wales, and accordingly compensation is not payable to the applicant pursuant to the Workers Compensation Act 1987. |
| ORDERS MADE: | 1. Award for the first respondent. 2. Award for the second respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Chloe Page, claims to have sustained an injury to her lower back and shoulders on 24 June 2021 due to the heavy lifting of equipment and suitcases while employed as a sales person with the first respondent, Super Car Rides Pty Ltd.
The applicant also claims to have sustained a psychological injury in the course of her employment with the first respondent as a result of her being required to reach unrealistic targets with little or no resources and support, and by bullying and harassment from officers of the respondent.
The applicant claims that she has been incapacitated for work as a result of her physical and psychological injuries since 5 July 2021, and claims weekly payments of compensation from 5 July 2021, along with the payment of her reasonably necessary medical expenses.
The applicant claims that she is entitled to workers compensation benefits pursuant to the Workers Compensation Act 1987 (the 1987 Act) because she was injured while working in New South Wales, or that her employment was connected to the state of New South Wales as provided for by section 9AA of the 1987 Act.
The first respondent has its registered office in the state of Queensland, and holds a workers compensation policy in the state of Queensland.
The applicant has made a claim for workers compensation benefits upon the second respondent, Workers Compensation Nominal Insurer, pursuant to section 140 of the 1987 Act, on the grounds that the first respondent was uninsured in the state of New South Wales.
The second respondent has issued dispute notices on 16 July 2021 and 29 July 2021 in respect of both the physical and psychological injuries sustained by the applicant, in which liability is disputed on the grounds that compensation is only payable to the applicant if her employment is connected to the state of New South Wales, and the applicant’s employment with the first respondent is not connected with the state of New South Wales as provided for by section 9AA of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant’s employment is connected with the state of New South Wales, so as to allow the payment of compensation to the applicant pursuant to the 1987 Act (section 9AA of the 1987 Act), and
(b) whether the applicant is entitled to workers compensation benefits pursuant to the 1987 Act because she sustained injury while working in the state of New South Wales.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 21 October 2021. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Ms Grotte appeared for the applicant, instructed by Mr Dababneh. Mr Morgan appeared for the respondent, instructed by Mr Harris. There was no appearance by the first respondent, although Mr Harris advised that the first respondent was aware of the hearing.
The hearing was conducted by telephone in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,400.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application to Resolve a Dispute (the ARD) and attached documents;
(b) Reply and attached documents filed by the second respondent;
(c) Application to Admit Late Documents filed by the applicant on 10 September 2021;
(d) Application to Admit Late Documents filed by the applicant on 18 October 2021;
(e) Application to Admit Late Documents filed by the second respondent on 19 October 2021; and
(f) Application to Admit Late Documents filed by the applicant on 21 October 2021.
Oral Evidence
There was no application to adduce oral evidence or to cross examine the applicant or any other witnesses who have provided statements.
The applicant’s evidence
The applicant has provided statements dated 20 July 2021, 6 October 2021 and 21 October 2021.
The applicant’s first statement dated 20 July 2021 provides evidence mostly in regard to the injury she sustained on 24 June 2021 and events following that injury.
The applicant states that she commenced employment with the first respondent on 3 March 2021. She states that the first respondent is based in Queensland and she relocated to the Gold Coast at the time of her employment.
The applicant states that the first respondent sells holiday packages, including accommodation and a ride or drive experience in a super car. She states that it was her role to sell these packages, which was mainly done at shopping centres. The applicant states: “That required me to travel around the country doing campaigns.” She states that she spent a lot of time in Queensland, New South Wales, ACT, and Victoria. She states: “My employer is based in Queensland, but I worked around Australia.”
The applicant states that on 22 June 2021 she “flew into Sydney for a campaign in Blacktown”. She states that she stayed that night at an Airbnb in Five Dock with three other workers from the first respondent.
The applicant states that the next day she went with the three other workers to Westpoint Blacktown to set up. She states that during the day there was an announcement of Sydney going into lockdown and two of the workers left, but that herself and the other work colleague, Jasmine, worked on until 6.00pm that day.
The applicant states that she went to The Star in the city that night, but that at about 12.30am Jasmine received a call to relocate to a different Airbnb the next day. The applicant states that she and Jasmine had to clean the Airbnb at Five Dock before the premises were vacated, and that she had to lift and carry several heavy suitcases and bollards from the Airbnb at Five Dock, and still be at Blacktown by 9.00am. She states that the carrying, cleaning and lifting caused her to have pain in the low back, shoulder and left knee.
The applicant states that after finishing work she went to the new Airbnb at Wentworth Point, but found that she had to carry suitcases weighing 30 kilograms up five flights of stairs to the accommodation because there was no elevator. She states that her lower back pain worsened as she tried to lug the first suitcase up the stairs. She states that the task was impossible and that alternative accommodation was arranged that night at a Meriton apartment in Paramatta.
The applicant states that she received rude and demeaning messages from Lameck, the owner of the business of the first respondent, his wife Paida, and the manager Chris, after she raised concerns regarding her accommodation and having to pack, clean and move while also trying to undertake her work duties. She states that these messages caused her to feel extremely anxious and stressed.
The applicant states that she worked all day on 25 June 2021, while her back and knee remained painful. She states that the first respondent arranged for a further change in accommodation to an Airbnb in Merrylands and this move caused an increase in lower back, shoulder and left knee pain.
The applicant states that on 27 June 2021 she was told to leave Sydney, otherwise she would be locked in and have to go on Centrelink. She states that she drove that night to Canberra, and then the next day drove onto Melbourne. The applicant states that she continued to work in Melbourne because she did not want to lose her job and was scared to be bullied and picked on again.
The applicant’s second statement provides details of where she worked prior to her injury in Sydney on 24 June 2021.
The applicant states that she worked in Mackay until 18 March 2021. She states on 18 March 2021:
“…my employer then took us out to eat at Cococabana…and asked how we would all feel about going to Melbourne and taking Supercar Rides there and stationing ourselves there because he felt bigger cities would be where we would have more growth.”
The applicant states that she was very excited because from Melbourne she would move to other cities including Sydney and Canberra. She includes in her second statement messages on a work group chat which refers to the preparation for work in Melbourne.
The applicant states that she then worked as follows:
(a) in Brisbane from 23 to 25 March 2021;
(b) at the Sunshine Coast from 7 April to 14 April 2021; and
(c) in Toowoomba from 14 to 24 April 2021.
The applicant states that after working in Toowoomba, she was again spoken to by Lameck about moving to Melbourne. The applicant states:
“It was confirmed it would be for 4 months initially to grow the business out there. It was a start and from there I was told it was intended that I would move to Sydney.”
The applicant states that she and her work colleague, Chris Manent, gave notice to their house mate at their apartment at the Gold Coast of their move to Melbourne. She states that there was then a change of plan whereby she was required to go to Canberra first. She states that she worked in Canberra from 28 April to 16 May 2021.
The applicant states that she left Canberra for Melbourne on 17 May 2021 “with the intention of being based in Melbourne for the next couple of months at least”. She states that she remained in Melbourne even though other team members were sent to Canberra to work. She states that while in Melbourne she was given the task of finding office space for the first respondent and permanent accommodation for staff in Melbourne. A letter with an offer to lease premises for three years in Southbank from Hallmarc Asset Management dated 8 June 2021 is in evidence, and it includes a signed acceptance of the offer by Lameck Tobiawa. The applicant states: “It was clear to me from the lease and the discussions that I was having that it was intended that I be based in Melbourne going forward at this point”.
The applicant states that in early June she received a call from Lameck, who told her that he wanted to move quickly to activate a permanent site in Sydney. She states that she was happy to stay in Melbourne but had previously expressed, and again expressed in this conversation, that she would prefer Sydney because it was closer to her family in Canberra. She states that Mr Brejnev said the team would be split between Melbourne and Sydney, and specific details would be discussed at a team meeting in Sydney on 15 June 2021.
The applicant states that she remained working in Melbourne until 12 June 2021, when she flew to Canberra. She states that she stayed in Canberra until 15 June 2021, and then went to Sydney for the team meeting on 16 June 2021 at 5.00pm. She states that during this meeting it “was discussed which team members would be stationed at Melbourne and Sydney with me on a permanent basis”.
The applicant states that she flew back to Melbourne the next morning. She states that she worked on 19 June 2021 with two new recruits who had been hired especially for Melbourne.
The applicant states that she had another conversation with Lameck on 21 June 2021. She states:
“He said words to the effect of “I know how bad you want to be in Sydney and I’m going to give you an opportunity to go there and perform and if you can hit a certain target, I will place you in Sydney permanently”. This was exciting. I knew I would meet the targets in Sydney and that would be my permanent base. I was flown out to Sydney that same afternoon.”
The applicant states that she stopped work on 2 July 2021. Certificates of Capacity have been issued by Dr Marcus on 5 July 2021 and 19 July 2021 certifying the applicant as having no current work capacity due to a Generalised Anxiety Disorder and Major Depression caused by bullying and harassment at work over the previous three months.
The applicant states: “had I not been injured I would have continued to work in New South Wales, and would have been based in New South Wales”. The applicant also states:
“Whilst I started in Queensland the intention soon thereafter was not to remain in Queensland and rather be in Melbourne and later in New South Wales.”
The applicant’s third statement dated 21 October 2021 addresses evidence provided by Lameck Brejnev in a statement dated 18 October 2021. In response to Mr Brejnev stating that employees were being sent to Melbourne and Sydney to test the market, the applicant states:
“…every employee that was present at out meeting in Sydney…can contest to that with Lin (my manager) specifically stating that I would be based in the Melbourne Team.”
The respondent’s lay evidence
Lameck Brezhinevhi Tobiawa, known as Lameck Brejnev, has provided statements dated 12 September 2021 and 18 October 2021.
In his first statement dated 12 September 2021, Mr Brejnev states that he is the sole director and principal of the first respondent. He states that the registered office and principal place of business of the first respondent is and always has been at his residence, 12 Knightsbridge Parade, West Paradise Point, Queensland.
Mr Brejnev states that the applicant commenced employment with the first respondent on
1 March 2021 as a salesperson and would proceed each day to a shopping centre to perform her normal duties.Mr Brejnev states that the applicant’s duties were performed entirely in Queensland, except for temporary absences in Canberra, Melbourne, and Sydney. He states that the applicant last physically worked in Queensland on or shortly before 28 April 2021 and then provides a list of dates that the applicant worked in Canberra, Melbourne and Sydney until 2 July 2021. He states that the applicant worked for a total of five days in Sydney.
Mr Brejnev states that when the applicant left Queensland on 28 April 2021, it was the intention that upon completing work in Melbourne that she would resume working in Queensland. He states that the periods that the applicant worked outside of Queensland were altered due to Covid lockdowns.
Mr Brejnev states that the applicant’s work in Canberra, Melbourne, and Sydney between May and July 2021 was temporary only and that had she not ceased work due to her injury then she would have resumed work in Queensland. He states that since early July, all employees have worked exclusively in Queensland.
Mr Brejnev’s second statement dated 18 October 2021 is in response to the applicant’s statement dated 6 October 2021. Mr Brejnev states that all discussions in relation to employees travelling to Melbourne and Sydney were a trial to see whether a more permanent arrangement would be viable. He states that staff were moved to Melbourne to test the market and there was never mention of any employee working there for four months. He denies that he had a discussion with the applicant or any other employee of being based in Melbourne for at least a couple of months.
Mr Brejnev states that he asked the applicant to make enquiries regarding the availability of office space in Melbourne, but a lease was never signed and there was no discussion with the applicant about her being based in Melbourne.
Mr Brejnev states that at a team building meeting on 16 June 2021 there were some general discussions in relation to the five and ten year plans of the first respondent, which included the possibility of setting up bases outside of Queensland, but there was no mention of when or if that would actually occur, and it was made clear that this would depend on how trials went outside of Queensland.
Mr Brejnev denies that there was any discussion with the applicant about being based in Sydney, and that the sole reason for the applicant going to Sydney was to test the market. He denies that he ever said to the applicant on 21 June 2021 that he knew how badly she wanted to work in Sydney and that she would be placed there permanently if she hit a certain target.
Mr Brejnev states that the first respondent has never established any place of business outside Queensland.
FINDINGS AND REASONS
Section 9AA of the 1987 Act relevantly provides:
“(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.
Deputy President Roche in Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 (Martin) provided an overview of the application of section 9AA at [60] as follows:
“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.”
Ms Grotte for the applicant submits that the application of section 9AA of the 1987 Act is not intended to cover the factual scenario of this dispute before the Commission. She refers to the submission made by her instructing solicitors to the second respondent dated 21 July 2021 that section 9AA “is used in circumstances where a worker’s contract of employment is from New South Wales, but that worker suffers injury outside of New South Wales”.
Ms Grotte submits that it is sufficient for the applicant to have sustained an injury in New South Wales while working in that State for her to receive entitlements pursuant to the 1987 Act. She submits that where there is uncertainty as to whether a worker is connected to a State, then section 9AA is engaged to determine what jurisdiction applies to the payment of benefits to an injured worker.
I do not accept that submission. Section 9AA (1) states that compensation is only payable under the 1987 Act when the worker’s employment is connected with the state of New South Wales. It is therefore mandatory for a worker who is seeking benefits pursuant to the 1987 Act to establish that his or her employment is connected to the state of New South Wales, and section 9AA (3) sets how to determine this. That was confirmed by DP Roche in Workers Compensation Nominal Insurer v O’Donohue [2014] NSWCCPD 1 (O’Donohue) when he said at [48]:
“To determine whether the employment is connected with New South Wales, sub-s (3) of s 9AA provides a series of cascading tests.”
DP Roche does not preface that remark by stating that section 9AA is some exceptional provision which only applies when a worker sustains an injury outside of New South Wales. Section 9AA is an exclusive provision which provides that compensation under the 1987 Act is only payable in respect of employment that is connected to the state of New South Wales, and then provides “a series of cascading tests” to determine if the worker’s employment is connected with New South Wales.
That is also consistent with the legislative purpose of section 9AA, which was summarised by DP Roche in Martin at [39-41]:
“39. 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”.
40. 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.
41.With this intention in mind, other States and the Territories introduced similar legislation to section 9AA, as follows:
- Accident Compensation Act1985 (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 Act1951 (ACT) – sections 36A and 36B.”
It would defeat the legislative purpose of section 9AA of the 1987 Act if the applicant were to receive workers compensation benefits under that Act merely because she was injured while working in New South Wales.
An alternative submission made by Ms Grotte is that the applicant does meet the criteria of section 9AA (3)(a), being that she usually works in her employment with the first respondent in New South Wales.
Section 9AA (3)(a) in isolation does not provide assistance for the applicant in this dispute. In Martin, DP Roche referred with approval to the decision of Gray J of the Australian Capital Territory Supreme Court in Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 (Hanns), who considered the term “usually carries out the work of the employment concerned” in section 7A (repealed) of the (ACT) Workers Compensation Act 1951 to be where the worker habitually or customarily works, or where the worker works in a regular manner.
The evidence in this dispute does not support an argument that the applicant habitually or customarily works in New South Wales. The applicant worked no more than six days in New South Wales in the four months she worked for the first respondent, and she worked more days in each of the states of Queensland and Victoria, and the Australian Capital Territory, than she did in New South Wales.
The assistance for the submission that the applicant usually works in her employment with the first respondent in New South Wales is based on what is provided for in section 9AA (6). That sub-section provides that when 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.
The applicant’s work history with the first respondent does not assist the applicant because of the little amount of time that she actually worked in New South Wales. However, the applicant contends that it was the intention of the first respondent and herself that she was to usually work in New South Wales.
From my review of the material in this dispute, this submission is supported by the following evidence provided by the applicant:
(a) being asked by her employer at a lunch on 18 March 2021 about how she would feel about going to Melbourne and stationing herself there because there would be more growth in the bigger cities;
(b) Mr Brejnev phoning the applicant in early June 2021 to tell her that he wanted to move quickly to activate a permanent site in Sydney, and the applicant informing Mr Brejnev that she would prefer to work in Sydney because it was closer to her family in Canberra;
(c) the meeting on 16 June 2021 in Sydney where there was a discussion as to which team members would be stationed in Melbourne and Sydney with the applicant on a permanent basis; and
(d) the conversation between the applicant and Mr Brejnev on 21 June 2021, wherein Mr Brejnev acknowledged the applicant’s desire to work in Sydney and giving her the opportunity to be placed in Sydney permanently if she met a certain target.
Mr Brejnev denies what the applicant claims he said in telephone conversations in early June and on 21 June 2021, and states that the reason for the applicant going to Sydney was to test the market. Mr Brejnev states that what was discussed at the lunch on 18 March 2021 and at the meeting on 16 June 2021 was limited to the possibility of setting up a permanent base in Sydney.
Ms Grotte refers to multiple inconsistencies in Mr Brejnev’s evidence. She submits that his evidence changes in response to the evidence of the applicant. Ms Grotte submits that the applicant’s evidence should be preferred when applying common sense and sound judgement to a consideration of the competing evidence between the applicant and
Mr Brejnev. She submits that this must lead to a finding that the intention of the parties was the applicant would usually work in New South Wales.I am not satisfied from a review of the applicant’s evidence that a finding can be made that the applicant usually works in her employment with the first respondent in New South Wales.
The applicant states that she was required to travel around the country doing campaigns, and she spent a lot of time in Queensland, New South Wales, ACT, and Victoria. She states: “My employer is based in Queensland, but I worked around Australia”. The work history with the first respondent which the applicant has set out in her evidence is consistent with this statement.
The applicant states that one of those campaigns was in Blacktown. She states that she “flew into Sydney for a campaign in Blacktown”. The absence of any other evidence as to what the applicant was going to do in Sydney once that campaign ended, supports a finding that this work in Sydney was temporary, and that there was no intention by the applicant and first respondent that the applicant would usually work in New South Wales.
There is no evidence that the campaign in Blacktown was to be the start of several campaigns over the ensuing months which would have the applicant usually working in New South Wales. There is no evidence of a list of shopping centres in Sydney or other parts of New South Wales which had been booked by the first respondent in the following months whereby the applicant would be working in New South Wales on a regular or habitual basis.
There is no evidence of a roster or timetable provided to the applicant which would indicate that the applicant would be working in New South Wales on a regular basis.
There is no evidence of the applicant taking steps to arrange some permanent accommodation for herself in Sydney because of an understanding that her usual work was in New South Wales. The arrangements which were made for the applicant’s accommodation in Sydney by the first respondent, whereby she and three other workers were to stay in an Airbnb, are consistent with the work in New South Wales only being temporary.
There is no evidence of the applicant being directed by the first respondent to find permanent accommodation for herself in Sydney, or to investigate premises for the first respondent’s business in Sydney. This is in contrast to the directions which were given by Mr Brejnev to the applicant to find office space for the first respondent and permanent accommodation for staff in Melbourne.
The specific references in the applicant’s evidence to being informed by Mr Brejnev that she would be working permanently in Sydney and New South Wales, are also not of sufficient weight that I can be satisfied that it was the intention of the parties that the applicant would usually work in New South Wales.
The enquiry by the applicant’s employer (presumably Mr Brejnev) to staff on 18 March 2021 was in regard to employees working in Melbourne. It is the applicant who then assumes that she would be able to move to Sydney. No such warranty was being given by the first respondent. It cannot be concluded from this evidence that it was the intention of the applicant and first respondent that the applicant would usually work in New South Wales.
The applicant’s evidence that she was informed in early June 2021 that Mr Brejnev wanted to move quickly to activate a permanent site in Sydney is not matched by any actions taken by the first respondent to do this. There is no evidence of quick action being taken by the first respondent to prepare a permanent base in Sydney over the next three weeks. The evidence is that the applicant flew to Sydney on 22 June 2021 for a campaign that did not extend beyond attending a shopping centre in Blacktown, during which time the applicant was provided with short term rental accommodation by the first respondent.
Furthermore, the applicant again assumes that she would be the employee that would be going to work on a permanent basis in Sydney. Sub-section (6) refers to regard being had to the intentions of the worker and the employer. It cannot be concluded from this evidence that it was intended by both parties that the applicant would be working permanently in Sydney.
The applicant states that at the meeting on 16 June 2021 it “was discussed which team members would be stationed at Melbourne and Sydney with me on a permanent basis”. However, the applicant does not provide any additional details of what was discussed at that meeting regarding the first respondent operating in Sydney on a permanent basis. For instance, the applicant does not name the other team members who were to be stationed in Sydney on a permanent basis.
The applicant also provides evidence in regard to that meeting which conflicts with her contention that she would usually work in New South Wales, when she states:
“…every employee that was present at out meeting in Sydney…can contest to that with Lin (my manager) specifically stating that I would be based in the Melbourne Team.”
It is apparent from this evidence that the applicant understood from the meeting on 16 June 2021 that she would be based in Melbourne. Furthermore, it was only one week before this meeting that the offer of a three year lease on an office in Melbourne led the applicant to state: “It was clear to me from the lease and the discussions that I was having that it was intended that I be based in Melbourne going forward at this point”. This evidence indicates that the applicant understood that her employment with the first respondent was to be based in Melbourne.
Finally, there is the conversation between the applicant and Mr Brejnev on 21 June 2021. I agree with the submission made by Mr Morgan that what the applicant claims was said by Mr Brejnev to her, even though it is denied by Mr Brejnev, amounts to no more than a hope or expectation that the applicant might be able to work permanently in Sydney if she were to meet certain targets.
I am not satisfied that the promise of the applicant being placed permanently in Sydney if she were to meet certain expectations set by the first respondent allows for a conclusion that the applicant would usually work in New South Wales, especially when there is a lack of any other evidence of steps being put in place by the first respondent for the applicant to habitually or regularly work in in New South Wales.
From my review of the evidence, neither the actual performance of the contract of employment by the applicant between 1 March 2021 and 2 July 2021, nor what was discussed between the applicant and Mr Brejnev as alleged by the applicant, provide sufficient evidence to support a finding that the applicant habitually, regularly or customarily works in New South Wales. I am not satisfied that the applicant has satisfied section 9AA (3)(a) of the 1987 Act.
I agree with Ms Grotte that there are inconsistencies in the evidence from Mr Brejnev. For instance, Mr Brejnev states that no lease was ever signed for premises in Melbourne. His evidence on this issue suggests that he was simply giving the applicant some work to do because the applicant was in lockdown. However, the letter of offer from Hallmarc Asset Management dated 8 June 2021, with a signature from Mr Brejnev, indicates that there had been concrete developments towards a permanent base being set up in Melbourne for the first respondent being set up in Melbourne.
Another example of inconsistent evidence from Mr Brejnev is that he states that since early July 2021 all employees had worked exclusively in Queensland. Mr Brejnev then concedes that some employees had been present outside of Queensland until late July 2021 when the applicant challenges this by providing a text message from Mr Brejnev dated 16 July 2021 which refers to employees being in Canberra.
However, those inconsistencies do not alter the findings which I have made from the available evidence, and which I have already referred to, that it is the applicant who has failed to provide sufficient evidence to establish that she usually works in her employment with the first respondent in New South Wales.
Although I am not satisfied that the applicant usually works for the first respondent in New South Wales, I am not able to determine from the available evidence if there is any other State in which the applicant usually works in her employment with the first respondent. It can be argued that the applicant usually works in Queensland because the greatest amount of time that she worked in any one State was for about six weeks in Queensland, and
Mr Brejnev states that any work outside of Queensland was temporary. However, against that argument is that the applicant had not worked in that State for two months prior to her injury.It could also be argued that the applicant usually works in Victoria because she had worked for about five weeks in total in that State and I have referred to some parts of the applicant’s evidence where she states that she understood that her employment was based in Victoria.
However, in the absence of no State, or no one State, being identified by the ‘usually works’ test, the next test is the ‘usually based’ test. There is no additional evidence, or alternative view of the available evidence, which supports a finding that the applicant is usually based in New South for the purposes of her employment with the first respondent.
The applicant did not permanently reside in New South Wales and journey from that State to other parts of Australia during the course of her employment with the first respondent. When the applicant did travel to Sydney on 22 June 2021, it was a temporary arrangement where the applicant stayed in rental accommodation.
The applicant does not meet any of the factors which DP Roche in Martin said a decision maker might have regard in considering the ‘usually based’ test. The applicant’s work location during her four months of employment with the first respondent was no more than some six days in New South Wales. The applicant did not routinely attend a location in New South Wales to receive instructions or collect equipment. The applicant did not report to any location in New South Wales in relation to her work. There is no evidence that the applicant’s wages were paid from New South Wales.
I am therefore not satisfied that the applicant is usually based for the purposes of her employment with the first respondent in the state of New South Wales.
As with the ‘usually works’ test, there is evidence which could support a finding that the applicant is usually based in Queensland or Victoria for the purposes of her employment with the first respondent. However, it is not necessary for such a finding to me made. Having been satisfied that the applicant’s employment is not usually based in New South Wales, the next and final test in section 9AA (3) is to look for the State ‘in which the employer’s principal place of business in Australia is located’.
In O’Donohue, DP Roche referred to a decision of Commissioner Herron in the District Court of Western Australia in Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 (Knight), and said at [78]:
“Accepting the reasoning in Knight, I said in Martin that an employer’s principal place of business is not necessarily the same as its principal place of business registered with the Australian Securities and Investment Commission under the Corporations Act 2001. I also agreed with Knight 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’ (Martin at [56]).”
The evidence supports a finding that the first respondent’s principal place of business is in the state of Queensland. Mr Brejnev states that the registered office and principal place of business of the first respondent is and always has been at his residence at 12 Knightsbridge Parade, West Paradise Point, Queensland. There is no evidence which disputes this.
The directions given to the applicant for the work which she undertook for the first respondent came from Mr Brejnev, who lives and has his business based in Queensland. There is no other location in any other State that can be identified from the evidence as being the chief or main place of business for the first respondent.
I therefore find that the first respondent’s principal place of business in Australia is located in the state of Queensland as provided for by section 9AA (3)(c) of the 1987 Act. As a consequence, compensation is not payable to the applicant under the 1987 Act because the applicant’s employment with the first respondent is not connected with the state of New South Wales.
There will be awards for the first respondent and second respondent.
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