Pioneer Concrete Group Pty Ltd v Workers Compensation Nominal Insurer
[2021] NSWPIC 293
•17 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Pioneer Concrete Group Pty Ltd v Workers Compensation Nominal Insurer [2021] NSWPIC 293 |
| APPLICANT: | Pioneer Concrete Group Pty Ltd |
| RESPONDENT: | Workers Compensation Nominal Insurer |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 17 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The employer ran a concrete pumping business with a depot in Queanbeyan, New South Wales and undertook most, but not all, of its work in the ACT; it held a workers compensation policy only in the ACT; the worker was injured when he lifted a petrol can at the depot; the Nominal Insurer under the 1987 Act paid the claim and sought reimbursement from the employer; the preliminary issue for determination was the worker’s state of connection within the meaning of section 9AA of the 1987 Act; the parties agreed that the worker usually worked in both the ACT and NSW; findings of fact made that the worker normally attended the deport at the commencement of and the end of the workday; Held- the state of connection was not identified by section 9AA(3)(b) as the worker was based at the Queanbeyan depot and probably also based with the concrete pump truck as that had been supplied by the employer; the state of connection was determined by the employer’s principal place of business under section 9AA(3)(c) which was at the Queanbeyan depot where it maintained its plant, the worker attended daily, it had an office, and indicated through correspondence that it operated from those premises; the concrete pump truck was stored at the Queanbeyan depot out of work hours; Balance of the claim stood over for determination of other issues. |
| DETERMINATIONS MADE: | 1. The worker’s employment with the applicant was connected with the State of New South Wales pursuant to s 9AA(3)(c) of the Workers Compensation Act 1987. |
| ORDERS MADE: | 2. The application is stood over for further telephone conference on 6 September 2021 at 9 am. 3. The applicant is directed to serve any further evidence by close of business, 2 September 2021. 4. The parties are to separately advise the second respondent of the date of the further telephone conference. |
STATEMENT OF REASONS
BACKGROUND
Mr Daniel Bronzon (the worker) was employed by Pioneer Concrete Group Pty Ltd (the employer) and purportedly sustained an injury to the lumbar spine on 29 October 2019 whilst lifting and carrying a fuel can. The employer operated a concrete pump truck stationed at Waterloo Street, Queanbeyan (the Queanbeyan deport). Work is undertaken by the employer in both New South Wales (NSW) and the Australian Capital Territory (ACT).
Mr David Bronzon is a director of the employer and the worker’s brother. To avoid confusion, Mr David Bronzon is referred to as Mr Bronzon and Mr Daniel Bronzon as the worker.
The employer did not hold a policy of insurance issued pursuant to the provisions of the Workers Compensation Act 1987 (1987 Act). The employer held a policy of insurance under the relevant workers compensation legislation of the ACT.[1]
[1] Reply, p 138.
The present dispute arises because payments were made to the worker by the Workers Compensation Nominal Insurer (the Nominal Insurer) under the NSW workers compensation scheme. The Nominal Insurer issued a notice dated 22 April 2021 to the employer under
s 145 of the 1987 Act seeking the recovery of payments totalling $70,867.93 (the notice).The employer has filed a Miscellaneous Application (Application) seeking orders disputing liability or, in the alternative, the quantum of the s 145 notice. The liability dispute raises issues under ss 4, 9A and 9AA of the 1987 Act. The employer also disputed the quantum based on the correct pre-injury average weekly earnings (PIAWE) and the extent of any period of aggravation.
The employer also sought contribution/apportionment from “All Concrete SLD Pty Ltd” in respect of an injury sustained by the worker on 22 March 2017 although that party was not joined to the proceedings.
ARBITRATION HEARING
The matter was listed for hearing on 4 August 2021. Mr Adhikary of counsel appeared for the employer and Mr Doak of counsel appeared for the respondent.
The applicant sought an adjournment of the hearing so that it could investigate the issue of injury and also seek an order for contribution against the prior employer liable for the injury sustained by the worker on 22 March 2017.
The respondent was given notice of the application on the previous day. It opposed the application.
The employer’s argument that it was entitled to contribution pursuant to s 22 of the 1987 Act was based on the worker’s prior injury sustained with “All Concrete SLD Pty Ltd”. The evidence before me established that the worker had sustained prior injuries to various body parts including the lumbar spine and had been assessed and paid s 66 compensation for 25% whole person impairment.
The timing of the application was unsatisfactory. However, contrary to the respondent’s submission, the medical evidence from Dr Powell, Dr Patrick and Dr Bodel provided an arguable basis that a portion of the worker’s loss of capacity was referable to the prior injury.
Other reasons for allowing the application included that the employer could not discontinue the proceedings under s 145 as it would lose its right to contest the notice.[2] The respondent otherwise did not point to any prejudice.
[2] Raniere Nominees Pty Ltd v WorkCover Authority of NSW [2006] NSWCA 235.
Without expressing any concluded view, I was of the view that the employer had an arguable entitlement to contribution from the previous employer. Despite the obvious delays in prosecuting this aspect of the claim, leave was granted to join the prior employer. Brief oral reasons were given granting leave to join the prior employer. These further written reasons are consistent with and should be read with those reasons.
The following order was issued on 4 August 2021:
“1. Leave granted to amend the Application to add “All Concrete SLD Pty Ltd” as a second respondent for the purposes of the applicant seeking contribution against it in respect of the injury suffered by the worker on 22 March 2017.
2. The amended application is to be filed and served by 13 August 2021.
3. The matter will be re-listed for a further telephone conference following the provision of reasons on the issue raised under s 9AA of the Workers Compensation Act, 1987.”
Submissions were then made on the s 9AA defence given the time available following the conciliation process. The determination of that issue was otherwise unaffected by the application to join the prior employer.
At that hearing, the following documentation was admitted by consent:
(a) Miscellaneous Application and attachments;
(b) Nominal Insurer’s Reply and attachments; and
(c) employer’s Application to admit late documents.
There was no application by any party to adduce oral evidence.
LEGISLATION
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.”
EVIDENCE
Daniel Bronzon
The worker provided a statement dated 28 November 2019.[3] He stated that he worked for the employer, drove the truck, and operated the pump. On 29 October 2019 he was lifting and carrying a fuel can when he felt an immediate increase of pain in his lower back.
[3] Reply, p 40.
The worker provided a further statement dated 22 June 2020.[4] He relevantly stated:
[4] Reply, p 108.
“21. My brother David Bronzon operates Pioneer Concrete Group Pty Ltd (Pioneer) at 32 Waterloo Street, Queanbeyan NSW/ACT 2620.
22. David was able to offer me a permanent position as a concrete pump operator which could fit in with my physical and medical restriction and I commenced with him on 16 April 2018. My duties were arranged so that I did not have to do any heavy work or lift any heavy items.
23. I was working out of the Waterloo Street, Queanbeyan Depot and living with my brother David ….
24. I normally started about 5-6 am at the Waterloo Street Depot and would get the concrete pump ready for the day by making sure the pump was clean and that we had all the equipment we needed for the work we were doing that day.
25. We would leave the Waterloo Depot each day and drive to where the job was for that day which was usually in the ACT/Canberra area. We could do an eight hours day or longer depending on the job we were doing, other days could be shorter but normally we would be on the site with the concrete pump set up by 6.30 am ready for the concrete truck to arrive and commence pumping. At the end of the job we would return to the Waterloo Depot and finish for the day.
…27. I was on restricted duties and my main job was to operate the controls of the concrete pump….
28. On the 29 October 2019 while at the Waterloo Street Depot getting the pump ready for the day’s work, I noticed the fuel can we carry on the truck was not there. The can weighs about 20 kg’s with the fuel. The can was on the ground near the truck and I lifted it, carried it for about five metres to the side of the truck and then lifted it up above my chest height, about 1.5 metres, I am 1.9 metres in height. I put the cap on the back of the truck and as I did I felt a “pop” in my lower back.
…31. During the period I was working with Pioneer Concrete Group Pty Ltd the majority of our work was in the ACT. We did very little work in Queanbeyan or NSW. I would start and finish work at Queanbeyan on a daily basis, but I estimate that 80% of the work I did was in the ACT and 20% in NSW. The Queanbeyan area is much smaller than the ACT and the border to ACT was only about a two-minute drive from the depot.”
David Bronzon
Mr Bronzon is a director of the applicant and provided a statement dated 17 June 2020.[5]
Mr Bronzon stated:“10. Daniel was unable to return to full duties and was out of work until I offered him a full time position at Pioneer Concrete Group Pty Ltd. His employment contract showed his date commencement as 16 April 2018 and his place of employment was to be at 2/1 Garnet Street, Rockdale NSW or other various locations.
11. He actually came to work with me working out of the yard at 32 Waterloo Street, Queanbeyan. I employed him as a concrete pump operator. He did not have to do any heavy work. He checked that the concrete pump was ready for work each day prior to it leaving the yard and when they arrived on the site Daniel operated the controls of the pump machine ….
13. On 29 October 2019 Daniel had arrived at the work yard between 5 and 6 am in Queanbeyan and was checking the concrete pump getting it ready for work that day. He apparently picked up a fuel can that had been removed from the concrete pump and lifted it up to put it back on the machine. The fuel can with fuel in it could weigh up to 20 kgs. In doing so he injured his back again. He made his way to the office and sat down.
14. Daniel was living with me at the time … He called me at home and told me what happened and I went in.
….
20. In the time Daniel worked with Pioneer Concrete Group Pty Ltd the majority of our work was in the Australian Capital Territory (ACT). We did very little in Queanbeyan or NSW. Daniel would start and finish work at Queanbeyan on a daily basis about 80% of the work we did was in the ACT and 20% in NSW. The border to ACT was only about a two-minute drive from the depot in Queanbeyan.
21. … While he started and finished work in Queanbeyan almost all his work was carried out in ACT.”
[5] Reply, p 115.
In a letter dated 4 August 2020[6] Mr Bronzon provided further information on the worker’s duties. Mr Bronzon stated:
“Daniel only checked that the concrete pump was ready for work each day prior to it leaving the former yard. Essentially attendance at the former yard was just a matter of starting up the concrete pump truck and leaving the premises to the ACT. Putting this aside, the work of preparing and setting up a concrete boom pump with mounting mechanisms had never taken place at the former yard. The nature of a concrete boom pump work requires preparation and setting up 'on site' which was (and still is) predominately in the ACT.
On numerous occasion, Daniel attended work by driving straight to a job site in the ACT by taking his own vehicle. Given that mounting of a concrete pump truck is required and the required time to clean the pump truck 'on-site' after finishing a particular job, a second vehicle was and is needed for safety reasons.
Daniel's course of his day-to-day duties and me providing instructions to him always occurred on site in the ACT. Further given the nature of our work and that I am a small business, all matters related to Daniel's work including administrative, human resources and other non-specific related employment issues took place in the ACT.”
[6] Application, p 19.
In a letter dated 13 January 2021, Mr Bronzon explained that his original statement to the investigator was “brief” and did not contemplate what the worker did on day-to-day basis. Reference was made to the letter dated 4 August 2020. It was further stated:[7]
“It should be noted for the record that the primary evidence, being the statements of David Bronzon and Daniel Bronzon, was each fully drafted by investigator Bob Hall. It should be noted that on numerous occasions, Bob Hall, misled David Bronzon by saying he was “trying to help” David avoids liability of the claim. In support of this, please refer to an email sent by Mr Hall dated 5 November 2020 whereby he said he was trying to obtain information [supplementary report] to try and “have GIO accept the claim”. Further it appears that your letter dated 11 January 2021 does not consider our email of 10 December 2020 where we advised that statements to Bob Hall were brief in nature and do not contemplate what Daniel did on a day-to-day basis during his time with Pioneer. Accordingly, Pioneer’s letter dated 4 August 2020 contains additional / different information as it was drafted by Pioneer and not a third party.
As set out in previous correspondence, Daniel Bronzon never worked at the Rockdale address and only commenced employment after Pioneer moved down to the ACT permanent. Therefore, the contract which stated a NSW Sydney location is irrelevant in the context of this matter. As you will see from ASIC records, Pioneer is located in the ACT. Further, as you will see from our letter dated 4 August 2020, Daniel only checked that the concrete pump was ready for work each day prior to it leaving the former yard. This is a job that only requires a few minutes of work. Having regard to Pioneer’s line of work, the proper commencement of work takes place on site. Therefore, Icare assertion that Daniel regularly would “collect tools” and “commence work” in NSW is misguided. …
Evidence has been provided to Icare to support that Daniel Bronzon usually worked in the ACT. In addition, your allegation that Daniel would ‘finish work’ in the ACT is denied as on most occasions, it was common for Daniel to leave the site in ACT and head home directly.”
[7] Application, p 54
A letter dated 27 May 2020 from the applicant with the contact specified as David Bronzon, provided the following information on the subject injury:[8]
“On or near Tuesday 29 October 2019 Daniel started work at our depot at 5.30 am which is at 32 Waterloo Street, Queanbeyan East.
Daniel was getting the mobile concrete pump ready like any other normal day.
There is a standard procedure and checklist that all Concrete pump operators must clear and check prior to leaving the yard with any of the machines.
All necessary equipment must be in good working order and on the machine ready for the day use. Daniel noticed there was no fuel can on the pump.
Once Daniel had found the jerry can in the depot, he decided to lift the can, back onto the pump, as any operator would do.”
[8] Reply, p 131.
Other documents
The employer and the worker executed an employment contract dated 16 April 2018[9] (the contract). The contract refers to the employer’s primary place of work at Garnet Street, Rockdale.
[9] Reply, p 140.
An ASIC search of the employer showed its registered office from 20 December 2016 to 9 August 2020 as Garnett Street, Rockdale and after that date at Amaroo, ACT.[10] Interestingly, the prior director who resigned in March 2017 resided at the same address in Garnett Street, Rockdale. Mr Bronzon became a director on 28 March 2017.
[10] Applicant’s late Application, p 23.
The claim form completed by the worker refers to the worksite where he was injured as being the “employer’s premises” at Waterloo Street, Queanbeyan East.[11]
[11] Reply, p 76.
A letter from the applicant dated 5 August 2020 addressed to Icare is signed by “Administration” and specifies the address as Waterloo Street, Queanbeyan.[12]
SUBMISSIONS
[12] Application, p 24.
Employer’s submissions
The employer noted that s 9AA (3) provided “cascading tests in determining the requisite state of connection”[13] citing Martin v R J Hibbens Pty Ltd.[14]
[13] Employer’s written submissions, [4].
[14] [2010] NSWWCCPD 83 (Hibbens).
The employer accepted the respondent’s contention that the worker “usually worked in both NSW and the ACT at the time of his injury”.[15]
[15] Employer’s written submissions, [5]-[6].
The employer submitted that usually means “habitual or customary” or “in a regular manner”: Hanns v Greyhound Pioneer Australia Ltd. (Hanns)[16]. It noted that in Tamboritha Consultants Pty Ltd v Knight (Knight)[17] Commissioner Herron suggested that “usually based” had a different meaning to “usually works”.
[16] [2006] ACTSC 5.
[17] [2008] WADC 78.
It referred to the observations in Avon Products Pty Ltd v Magrit Falls[18] that what “would have particular relevance is the provision by the employer of a place from which the employee is expected to operate.”
[18] [2010] ACTCA 21 (Avon Products).
The employer submitted that the worker was usually based in the ACT because:[19]
[19] Employer’s written submissions, [22].
“a. The worker received instructions in the work site which was predominantly in the ACT. Although instructions would have been provided to the worker when undertaken work in a NSW work site, this was not habitual or customary or in a regular manner noting the predominance of the work was undertaken in the ACT.
b. Administrative matters related to the worker’s employment, including human resources and other non-specific employment issues took place in the ACT.
c. The worker was expected to operate from the ACT noting that was where the predominant amount of work was undertaken.
d. The worker conducted his employment duties from the location of the concrete pump truck and this was the predominantly the ACT.
e. It was common for the worker to leave work in the ACT and go home directly from there without attending the depot.
f. The worker attended the work site directly.”
The employer submitted an alternative proposition that the worker was usually based in both the ACT and NSW based on the predominant amount of work undertaken in the ACT, the small amount of work undertaken in NSW and that the worker routinely attended the depot to commence his employment duties and routinely returned at the end of the shift.
In relation to the principal pace of business the employer submitted, in accordance with Knight that this was not the registered address but the “chief, most important or main place of business from where the employer conducts most or the chief part of its business”.[20] It was submitted that this was the ACT because:
(a) the applicant operates a business involving a concrete pumping truck that was predominantly undertaken in the ACT; and
(b) the nature of the activities undertaken in NSW were not the main place of business.
[20] Employer’s written submissions, [27].
The employer accepted that the principles were set out in Workers Compensation Nominal Insurer vO’Donoghue[21] were applicable to the resolution under s 9AA.
[21] [2014] NSWWCCPD 1 (O’Donoghue).
The employer admitted that the accident occurred at the Queanbeyan depot despite what the worker stated in a statement dated 28 November 2019.
The worker was usually based in the ACT in part because the work was usually performed in the ACT. The base on which the worker performed was the concrete truck of which was usually in the ACT.
Administrative matters in relation to the worker’s employment was in the ACT in accordance with Mr Bronzon’s evidence.[22] This related to such matters as the paperwork in relation to the employment and payroll.
[22] See Application, p 20.
As to s 9AA(3)(c) the place of business was based on the dominant work which was undertaken in the ACT. The place varied. The business was principally undertaken in the ACT because the applicant operated a business providing services involving a concrete pump truck which is predominantly undertaken in the ACT and the nature of the activities undertaken in NSW were not the main place of its business.[23]
[23] Employer’s written submissions, [32].
In reply, the employer submitted:
(a) the only evidence as to administration is that it was undertaken in the ACT in accordance with Mr Bronzon’s statement;
(b) there was evidence that the worker did not always return to the depot. Any inconsistency in the evidence is explained by Mr Bronzon in his email dated 13 January 2021. The worker drove his own car to the work site;
(c) Mr Bronzon’s statements in his letter dated 4 August 2020 as to whether the worker would always attend the Queanbeyan depot in the morning was not inconsistent;
(d) the further correspondence from the applicant specifically addresses the s 9AA issue. There is no direct evidence that contradicts Mr Bronzon’s evidence, and any inconsistency is explained because the statement was prepared by the investigator;
(e) under clause (b) it is not just the work site and the truck but the administration;
(f) Clauses (b) and (c) are not necessarily related as the employer submitted. Clause (b) relates to where the worker was usually based but clause (c) refers to the employer’s place of business; and
(g) accepted the respondent’s concession that the reference in the contract to Rockdale was irrelevant.
Respondent’s submissions
The respondent accepted the applicant’s submission that, pursuant to s 9AA(3)(a), the worker usually worked in both the ACT and NSW. This was because work was done in both NSW and the ACT.
The respondent referred to the decision of O’Donohue[24] and that the construction of the section required “an analysis of the facts in a cascading fashion”.
[24] [2014] NSWWCCPD 1 (O’Donohue).
Base means where the business is operated from, where you start and where you finish and where the materials are stored. The meaning has to be different from “works” otherwise sub-section (b) would be redundant.
The base was the Queanbeyan depot and not the Rockdale address. This is clear from the evidence of Mr Bronzon and the worker. That evidence is that they attended the depot each morning.
The statement made by Mr Bronzon on 4 August 2020 was “self-serving” and should be given no weight. The reference by Mr Bronzon on 4 August 2020 that the worker often drove straight to work in the ACT was inconsistent with his earlier statement and inconsistent with the worker’s statement. The statement was an attempt to minimise any link with the Queanbeyan depot.
The administrative function purportedly performed in the ACT and referred to in that statement is unclear. At its highest that may be a reference to instruction given at the worksite. There is no evidence of any payroll in the ACT.
The claim form completed by the worker identified the employer’s address at Queanbeyan. Correspondence from iCare was sent to this address.[25]
[25] Application, p 14.
After the injury the worker went into the office and laid down. Presumably any administrative occurred in the office. That submission is consistent with the applicant’s letter dated 5 August 2020 which states that it was from “Administration” and referred to the Waterloo Street, Queanbeyan address.
The concrete truck was returned to and parked at the depot overnight and got ready in the morning and then driven to the work site.
The employer is asking the Commission to draw inferences from “nonspecific self-serving comments” which are inconsistent with the evidence which shows that the business was based and operating from the depot at Queanbeyan.
The evidence establishes that usually based also satisfies the principles place of business in (c).
The reference in the contract to Rockdale was the registered address and was the address of one of the directors and was probably the home address of a previous director. Rockdale was “not particularly relevant” and could be “put to one side”. The principal place of business was the depot at Queanbeyan. This subsection directs attention to the conduct of the business and not to the performance of the work. A business is not conducted simply where it works.
There is an office and materials were stored at the Queanbeyan depot.
REASONS
Factual findings
It is necessary to make preliminary factual findings, particularly with reference to the work duties and movements of the worker. In particular, the submissions focused on whether the contents of Mr Bronzon’s statement dated 4 August 2020 (set out at paragraph 22 herein) and the explanation given by Mr Bronzon in a letter dated 13 January 2021 (set out at paragraph 23 herein) should be accepted.
For the following reasons I accept and reject portions of this evidence.
I accept the first paragraph of the letter dated 4 August 2020. This evidence is consistent with both Mr Bronzon’s previous statement and the worker’s statement. It also adds detail to the scope of the work undertaken at the building site such as the preparation of the concrete pump truck and the installation of a boom pump.
I accept that that part of the second paragraph which sets out that the concrete pump truck was cleaned at the building site. Again, that comment is further detail and is not inconsistent with what was stated in the earlier statement. It is otherwise logical that the equipment would be cleaned at the building site.
I accept the first sentence in the third paragraph of that letter. Again, that sentence is explanatory of what was stated previously, not inconsistent, and otherwise logical. Indeed, the respondent accepted that it could be inferred that direction would have been given at the building site. That evidence does not need to be inferred but the acceptance by the respondent that it could be inferred is in accordance with the evidence otherwise being logical and according with commonsense.
I do not accept that part of the letter dated 4 August 2020 where Mr Bronzon states:
“On numerous occasion, Daniel attended work by driving straight to a job site in the ACT by taking his own vehicle.”
That sentence is inconsistent with the worker’s evidence, set out at paragraph 20 herein, that he normally started about 5-6 am at the Waterloo Street Depot. The sentence is inconsistent with the worker’s short statement dated 28 November 2019 that he drove the truck. The sentence is also inconsistent with Mr Bronzon’s statement in the earlier paragraph in the letter dated 4 August 2020 when he stated that the worker “checked that the concrete pump was ready for work each day prior to it leaving the former yard” and his previous statement dated 17 June 2020[26]. It is also inconsistent with the statement by the applicant in its letter dated 27 May 2020 that “Daniel was getting the mobile concrete pump ready like any other normal day”.[27] That letter was not drafted by the investigator and is clear that the presence of the worker at the depot on the date of the injury was “like any other day”.
[26] See paragraph [21] herein.
[27] See paragraph [24] herein.
The worker stated that his duties involved driving the truck and operating the pump. If the worker did not drive the truck to the building site and drove his own car direct to the building site, then some other (unknown) person would have to undertake that task. That task may have been undertaken by the Mr Bronzon although he does not state it.
I positively find that the worker usually attended the depot at the commencement of each workday. The exception that the worker did not attend would have been extremely unusual rather than “numerous” as asserted by Mr Bronzon in the letter dated 4 August 2020.
In a letter dated 13 January 2021 Mr Bronzon asserted:
“In addition, your allegation that Daniel would ‘finish work’ in the ACT is denied as on most occasions, it was common for Daniel to leave the site in ACT and head home directly.”
That sentence is contradicted by the worker’s statement that at the end of the day “we would return to the Waterloo Depot and finish for the day”.[28]
[28] See paragraph [20], sub-paragraph 25 herein.
The sentence is also contradicted by Mr Bronzon’s earlier statement that the worker “started and finished work in Queanbeyan”.[29]
[29] See paragraph [21], sub-paragraph 21 herein.
I do not accept that Mr Bronzon was misled by the investigator. There is an inconsistency in Mr Bronzon’s accounts which is otherwise inconsistent with the worker’s evidence. If the inconsistency was to be explained, it is not explained by the bare assertion that the investigator “misled” Mr Bronzon in circumstances where the statement was signed. If the worker drove the truck as he stated, then he could not have driven his private car to the building site. If the worker did not drive the truck, then some other unspecified person undertook that task.
I prefer the worker’s evidence in his statement to that part of Mr Bronzon’s latter statement where he asserted that “on most occasions” the worker would leave the building site and head home directly.
The other aspect of Mr Bronzon’s evidence which was disputed is the following statement:
“Further given the nature of our work and that I am a small business, all matters related to Daniel’s work including administrative, human resources and other non-specific related employment issues took place in the ACT.”
The employer submitted that the evidence was uncontradicted. However, the employer had an office at the Queanbeyan depot which is somewhat inconsistent with administration being exclusively undertaken in the ACT. Further, the employer’s letter dated 5 August 2020 is signed by “Administration” and refers to the address in Waterloo Street, Queanbeyan.[30]
[30] Application, p 24.
I do not know what the disputed sentence means[31], and I said as much during the hearing. It is not simply rejected as self-serving as the respondent submitted. However, the sentence is lacking in any detail such that its evidential value is poor. There are no specifics as to what was undertaken in the ACT.
[31] Set out at [69] above.
I return to the evidential value of that sentence later in these Reasons.
The applicant in a letter dated 13 January 2021 stated that the investigator “misled”
Mr Bronzon. It was asserted that the statements were “each fully drafted” by the investigator.The fact that the statements were “fully drafted” by the investigator does not mean that anyone was misled. There is no suggestion that the witnesses did not read the statements and they were signed and witnessed on each page.
The allegation that Mr Bronzon was “misled” appears to be based on the assertion that the investigator was assisting him in getting the ACT workers compensation insurer to pay the claim and that did not eventuate. However, the bare assertion that Mr Bronzon was misled does not explain the inconsistencies in the various correspondence as to where the worker started and ended his day.
Further, the fact that the statements were not detailed does not mean that anyone was misled. Detail not inconsistent with prior versions is explicable on the basis that the investigator was not equipped to ask all relevant questions pertinent to the operation of
s 9AA. That position does not mean that the investigator misled the applicant.
I accept the worker’s evidence that his duties involved the operation of the concrete pump attached to a truck. The truck was parked at the Queanbeyan depot outside work hours.
I accept the evidence from both the worker and Mr Bronzon that a large majority of the work was undertaken in the ACT. The nature of the business involving the provision of a concrete pumping truck where the available market was far greater in the ACT than in Queanbeyan. The depot was close to the ACT border which meant that there was easy egress to the ACT, and this otherwise supports the evidence that approximately 80% of the work was undertaken in the territory.
The worker commenced his day at the Queanbeyan depot. At that time the concrete pump was made ready. This does not appear to have been a long process and is consistent with the worker’s evidence that he had to be on the building site ready to go at 6.30am. It appears that equipment was stored at the depot such as a fuel can. It is unclear from the evidence what other materials were stored although they may include the various attachments that were fitted onto the concrete pump at the building site.
It is unclear whether Mr Bronzon was usually present in the morning at the depot. He was not present on the day of the purported injury. The evidence from the worker were that his duties involved getting the truck ready. This suggested that Mr Bronzon may not have always been present.
The concrete pump is part of and/or attached to a truck. It has other parts that are attached to it at the building site such as “a concrete boom pump with mounting mechanisms”. I accept that part of Mr Bronzon’s evidence that this work is done at the building site and not at the depot.
I accept Mr Bronzon’s evidence that there would be some instruction given at the building site. The nature of the instruction is unclear because there was no specific evidence as to what was instructed. Presumably the worker knew what to do as he had been performing the work for some 18 months. However, I accept that there would have been some instruction at the building site.
Consistent with my earlier findings it is likely that the worker generally travelled with the truck between the depot and the building site.
As noted, the work could extend over an eight-hour day, generally on a building site in the ACT. I accept that at the end of the actual concreting on the building site, parts would be removed from the pump, and the truck would be cleaned. The truck would then return to depot at the end of the day. The worker would usually return to the depot probably in the truck.
Legal Principles
In O’Donohue the Acting President confirmed that the test in s 9AA(3) provided a series of “cascading test to determine the State with which the employment is connected”.[32]
[32] O’Donohue at [3].
The Acting President repeated what he stated in Martin v R J Hibbens[33] with some qualifications. He stated:[34]
[33] [2010] NSWWCCPD 83 (Martin).
[34] O’Donohue at [53]-[56].
“53. I considered the general operation of s 9AA in Martin v R J Hibbens Pty Ltd[2010] NSWWCCPD 83 (Martin). After reviewing the authorities, I concluded (at [60]) that the following principles are applicable in determining cases under that provision:
‘(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]) [Hanns v Greyhound Pioneer Australia Ltd[2006] ACTSC 5]. 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]) [Avon Products Pty Ltd v Falls[2009] ACTSC 141], 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.’
54. To the above summary must be added the following qualification. After deciding Martin, the Supreme Court of the ACT, Court of Appeal, overturned the decision in Falls (see Avon Products Pty Ltd v Falls[2010] ACTCA 21 (Falls CA). In the joint judgment in Falls CA, Gray P, Penfold and Marshall JJ held at [29]:
‘There is no gloss placed on s 36B(3)(a) which compels a court only to consider where a worker is ‘required’ to work.’
55. The Court went on to conclude, at [30]:
‘We have no doubt that Ms Falls was required to do the work that she happened to do in NSW, but that she was not required to do it in NSW. We also have no doubt that a requirement or the absence of a requirement as to where work is performed is not relevant; the test is where the work is done, rather than where it is required to be done or whether it is required to be done anywhere in particular.’
56. It follows, as Keating DCJ observed in Klemke v Grenfell Commodities Pty Ltd[2011] NSWWCCPD 27, that the extracted principle from the first instance decision in Falls, namely, that it would be relevant to look at where the worker is contracted to do the work, will not always be a determinative consideration. The test is where the work is done (Falls CA). However, care must be exercised when, because of the injury, the work under the contract has not been completed. In that situation, it may still be necessary to look at where the worker was contracted to work.”
In Hibbens Roche DP adopted[35] the discussion by Commissioner Herron in Knight as to the correct test for usually based. Roche DP stated:[36]
“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.”
[35] At [79].
[36] At [53].
However, in O’Donohue Roche DP appeared to move away from the set criteria discussed in Hibbens when he stated that “the ‘usually based’ test does not involve the application of any specific, pre-set, criteria”.[37]
[37] O’Donohue at [75].
The employer referred to the decision in Avon Products as supporting its case. That case
concerned an employer who marketed a range of cosmetic products sold directly to consumers. The worker lived in a suburb of Queanbeyan, NSW, where a significant proportion of her time was spent on administrative work. Most of the worker’s working time occurred in the ACT where she was responsible for a number of agents who worked entirely within a district of the ACT. In relation to the question of where the worker is usually based, the Court stated:[38]
“The fact that Ms Falls did some work from home does not necessarily constitute that place as her base for the purposes of her employment. Something more than a convenient place for part of her duties to be carried out is required before it can be said that her residence was her base in an employment sense. In the same way it might be said that while working in her sales district in the ACT her vehicle was her base. What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate.”
[38] At [32].
The relevant part of the ACT legislation is similar to the 1987 Act and was extensively considered by the Full Court of the ACT Supreme Court in I.C. Formwork Services Pty Ltd v Moir (No 2).[39] Relevantly the Court discussed the meaning of “usually”. Reference was made to the decision of Ferguson v WorkCover Queensland[40] where the worker started and finished his delivery runs in Tweed Heads but worked predominantly in Queensland for 70 to 80% of the time. The Court stated that the approach taken in Ferguson was consistent with the approach taken by Gray J in Hanns, that is:[41]
“Applegarth J said that the statutory context of the expression “usually works” requires it to be interpreted in a way which would permit, in appropriate circumstances, the conclusion to be drawn that the worker usually worked in more than one state: [21]. His Honour reviewed the relevant authorities of Hanns, Tamboritha, Martin and Avon, and adopted a formulation consistent with that adopted by Gray J in Hanns, saying that a worker will work in more than one state if the worker “habitually or customarily” works in the second state. He concluded that the worker worked in both Queensland and NSW. In relation to his NSW work, that was “customary, common and frequent” and “not unusual”: Deliveries to NSW were “a common, indeed regular, feature of his work”.
[39] [2020] ACTCA 44.
[40] [2013] QSC 78.
[41] At [41].
The Court concluded that the test involves what is “habitual or customary rather than where the majority of the time is spent”.[42]
[42] At [41].
Usually works – s 9AA(3)(a)
The parties agreed that no clear answer was found under s 9AA(3)(a) between either NSW and the ACT as the worker usually worked in both states. That agreement is consistent with the evidence and the meaning given to “usually” as stated above.[43]
[43] See [90] herein.
Usually based – s 9AA(3)(b)
The employer relied on the discussion in Knight of matters relevant to “usually based”. Those matters were extracted from s 53AA of the Work Health Act (NT) and seem to have been adopted in O’Donohue despite the absence of these words appearing in the 1987 Act. Noting that Commissioner Herron stated that no matter was decisive and otherwise assuming they are relevant, in my view they have little application to this case. Roche DP stated as much in O’Donoghue.
Section 9AA(3)(b) does not require a worker to be based in a particular location within a State. Rather the clause requires the identification of a State “in which the worker is usually based”.
The worker had been employed by the applicant for approximately 18 months. He was not usually based in Rockdale despite what the contract stated when he commenced his duties. The parties otherwise acknowledged that the reference in the contract to Rockdale could be ignored.
I agree with the employer’s submission that clause (b) is directed to where the worker is “usually based” but clause (c) is directed to the employer’s “principal place of business”. I agree that they are distinct concepts and do not necessarily involve consideration of the same facts.
I refer to my earlier findings that the employer’s evidence concerning administration set out at paragraph 69 herein is devoid of any specifics and has minimal evidentiary value.
The accepted evidence in this matter shows that the worker regularly commenced and ended his workday at the Queanbeyan depot. He collected the truck and materials at the start of the day and returned these to the depot at the end of the day. During the workday he was otherwise tied to the concrete pumping truck located at various building sites usually in the ACT but sometimes in NSW.
I accept Mr Bronzon’s evidence that there would have been some direction given at the building sites.
Noting that the Courts have defined “usually” as habitually or customarily, the worker was usually based at the depot. This finding is strengthened by the preliminary findings that the worker would usually start and finish his day at the depot.
However, I also accept that the worker was based with the truck which was usually on a building site in the ACT. In the sense discussed by the Court in Avon Products,[44] the employer provided a truck for the worker which also operated as his base.
[44] See [89] herein.
In these circumstances the worker was usually based in the depot in NSW and also with the truck which was often in the ACT. I am not satisfied that clause (b) provides an answer to the resolution of the appropriate state of connection.
Employer’s principal place of business – s 9AA(3)(c)
The parties agreed that the reference in the contract to Rockdale can be ignored. The Rockdale address was also the employer’s registered office until it was changed in August 2020.
I agree with the applicant’s submission that clause (c) is directed to the “employer’s” place of business contrasting that clause with (a) and (b) which is focused on the worker.
I agree with the respondent’s submission that the answer to this issue is clearly the Queanbeyan depot.
The employer ran its business out of the Queanbeyan depot. The concrete truck was parked there on a nightly basis, left in the morning, and returned in the evening. At least some equipment was stored there as the worker recovered the fuel can when he suffered the purported injury to the lumbar spine.
The employer had an office at the depot and correspondence was sent to that address. Correspondence from the employer signed by “Administration” indicated that address.[45] A claim form completed by the worker identified the depot as the “employer’s premises”.[46]
[45] Application, p 24.
[46] Reply, p 76.
The suggestion that it was Amaroo in the ACT is devoid of any factual basis as to what occurred at that place. Furthermore, despite comments to the contrary in the correspondence, the registered office was not changed until mid-2020.
I note the employer’s argument that the business was regularly carried on at different building sites in the ACT. Whilst that submission is correct, I do not accept that those various building sites identify a principal place of business for the employer. The applicant’s submission that it was in the ACT where most of the work was undertaken does not address the concept of the “employer’s principal place of business” in clause (c). The building sites where the concreting work was performed varied and did not identify any principal place
The employer’s principal place of business was at the Queanbeyan depot where it maintained its plant, the worker attended daily, it had an office, and indicated through correspondence that it operated from those premises. The concrete pump truck was stored at the Queanbeyan depot out of work hours.
For these reasons, I conclude that the answer to s 9AA(3)(c) is the Queanbeyan depot which is in New South Wales.
Orders and findings
The finding and orders are set out in the Certificate of Determination.
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