Smith v Workers Compensation Nominal Insurer (iCare)
[2021] NSWPIC 318
•1 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Smith v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 318 |
| APPLICANT: | Brian Smith |
| FIRST RESPONDENT: | Goodway Supercool Pty Ltd |
| SECOND RESPONDENT: | Goodway Rubber Company Pty Ltd |
| THIRD RESPONDENT: | Goodway Industries SDN BHD |
| FOURTH RESPONDENT: | Goodway Integrated Industries Berhad (GIIB Group) |
| FIFTH RESPONDENT: | Workers Compensation Nominal Insurer |
| MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 1 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Consideration of employment relationship between various entities; consideration of section 9AA of the Workers Compensation Act 1987; Held – the Nominal Insurer is to pay any compensation including reasonably incurred section 60 expenses and costs awarded against the employer from the Workers Compensation Insurance Fund pursuant to section 154D of the Workers Compensation Act 1987. |
| DETERMINATIONS MADE: | 1. Brian Smith was in employment connected with New South Wales (as prescribed by Section 9AA of the Workers Compensation Act 1987). 2. Mr Smith suffered an injury on 17 August 2015 in New South Wales. 3. The applicant was employed by Goodway Integrated Industries Berhad (GIIB Group) (a Malaysian Company). 4. The Nominal Insurer is to pay any compensation including reasonably incurred section 60 expenses and costs awarded against the employer from the Workers Compensation Insurance Fund pursuant to s 154D of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
The applicant was injured on 17 August 2015, injury not being in dispute.
The dispute between the parties is in relation to the characterisation of the employment relationship that the applicant was in at the time of his injury, specifically who he was employed by. There is a complex relationship of multiple companies, some that exist in Australia and some that exist in Malaysia.
The dispute relates to whom the applicant was employed by and if s 9AA of the Workers Compensation Act 1987 (the 1987 Act) applies to the claim.
The applicant seeks a general order pursuant to section 60 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. 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.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (the Application);
(b) Reply to the Application to Resolve a Dispute, and
(c) Late documents dated 21 July 2021.
The evidence generally
In order to understand the commercial arrangements between the various respondents, it is important to consider the evidence relied upon in these proceedings.
Applicant’s evidence
The applicant has sworn a statement dated 7 June 2017[1] which is annexed to the Application. The applicant says he was employed by Goodway Industries GIIB Group (the fourth respondent) since 1 January 2015.
[1] Application page 4
The applicant describes the company set-up in the following way. There was a Malaysian parent company (the fourth respondent) who owns 100% of Goodway Rubber Company Pty Ltd (the second respondent) as well as Goodway Supercool Pty Ltd (the first respondent). The applicant is the managing director of these operations in Australia reporting to the head office in Malaysia.
The applicant says that his duties involved sales, marketing, meeting with customers and building up further business as well as overseeing the financial position of the company.
The applicant states that he did not have a supervisor as he is the Managing Director due to the company being an overseas company requiring an Australian to be a Director for the purposes of financial borrowing etc.
The applicant says that he drives to his place of employment in a company provided vehicle in Minto each Monday, then stays at a motel from Monday to Friday and returns home to his residential address on weekends (which is in New South Wales).
The applicant said he also travels to the head office in Malaysia when needed which would be about four times per year. There was also travel to other places as required.
The applicant is paid on a commission basis of equivalent of approximately $10,000 per month which was paid directly into his Malaysian bank account in Malaysian currency.
On 17 August 2015, there is no issue that the applicant sustained an injury by way of a small blister on the right heel area. The applicant did not pay much attention to it however the injury progressed and he consulted his general practitioner on 4 October 2015. At that stage it appeared that the blister was infected. The applicant continued to seek treatment which included cleaning and treating the wounds with dressing and medication without success.
The applicant returned to Malaysia where he underwent surgery to scrape and clean the wound.
Upon return to Australia the applicant attended Campbelltown Hospital at the beginning of April 2016.
The applicant was admitted to Wollongong Hospital on 14 April 2016 for surgery under
Dr Villalba. The applicant remained in hospital for 14 days and then underwent further surgeries to address the injury.The applicant again had further surgery at Wollongong Hospital on 28 April 2016 and then again on 14 May 2016.
The applicant has provided a supplementary statement dated 9 April 2018. In this statement the applicant confirms that his wages continued to be paid by the parent company- the fourth respondent which is domiciled in Malaysia. The applicant also confirms that he is appointed as the managing director of Goodway Rubber Co Pty Ltd and also Goodway Supercool Pty Ltd.
The applicant says that at the time of his injury he was being paid wages by the Malaysian parent company, Goodway Rubber Industries Pty Ltd.
Contract of employment
There is a contract that exists between the fourth respondent and the applicant dated 11 December 2014.[2] The contract is for appointment from 1 January 2015 to 31 December 2015 which clearly covers the injurious event on 17 August 2015.
[2] Application page 47
The terms of the contact include full-time work and make provisions in respect of public holidays, annual leave and sick leave.
The contract is signed by both the applicant and Alison Piong, the chief operating officer for Goodway Integrated Industries Berhad (the fourth respondent).
WorkCover Claim Form
A WorkCover claim form has been provided.[3] The claim form nominates the date of injury being 17 August 2015 and the employer being Goodway Industries SDN BHD. The applicant states that the claim is also being made against Goodway Rubber Co Pty Ltd for the same injury of which particulars were already provided. The applicant also says that he reported the injury to James Gleeson and contact details are provided for him together with identifying a witness to the injury being Arthur Humphries.
[3] Application page 39
Treating doctors records
The treating general practitioner’s records have been provided.[4] I have perused the treating notes and it does contain a history which is corroborative of the applicant’s statement and claim form, that is, in respect of injury.
[4] Application to Admit Late Documents page 100
The treating notes also reflect an ongoing relationship between the applicant and his treating doctor for regular consultations and advice.
Pre-payment document
At page 245 of the late documents, there is a single page which is headed “Pre-Payment Goods/deposit/GII Bank Transactions”. What this is, it appears, is a document indicating payments made by Goodway Rubber Company Pty Ltd to Mr Smith for his salary.
The payments go back to 2018 and unfortunately don’t cover the period where the applicant was injured so are of very limited assistance. At the time of the injury the applicant’s evidence is that he was paid directly into a Malaysian bank account.
James Gleeson
Mr Gleeson has prepared a statement dated 31 August 2020[5]. Mr Gleeson was employed by Goodway rubber company departure Ltd as a factory manager at the retreading factory in Penrith. He understood that the applicant was employed as a Managing Director of Goodway Rubber Company Proprietary Limited.
[5] Reply page 171
Mr Gleeson says that the applicant between 2001 and 2015 spent most of his time in Malaysia. He described Mr Smith as performing white-collar executive type work in Malaysia, however approximately four or five times per year he would come back to Australia for six to eight weeks at a time. Mr Gleeson observed that this changed from about 2015 at which time the applicant spent around 99% of his time in Australia.
LEGISLATION
Section 9AA of the Workers Compensation Act 1987 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 s hip 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.”
CONSIDERATION
In this matter I find it very persuasive that the applicant was subject to a contract of employment with a particular company. He was doing gainful work for which he was paid for by that company into a Malaysian bank account. There was no evidence anyone else was paying the applicant other than that company. The fact that the applicant was paid at the time of the injury into a Malaysian bank account in Malaysian dollars is also indicative and supportive of a finding that the applicant was indeed employed by the Malaysian company.
I have a small amount of concern is the applicant nominated his employer is someone different on the claim form, namely the third respondent. To my mind however, the contract of employment is the best evidence of who the contracting parties were, namely employee and employer. I recognise the conflicting evidence in the claim form however find that the employment contract is ultimately the most persuasive evidence of the employment relationship.
I therefore am persuaded that the applicant did have a contract of employment with the overseas Malaysian company Goodway Industries (GIIB Group) the fourth respondent.
Liability for compensation needs to be considered in light of s 9AA(3) of the 1987 Act. That section concerns whether employment is connected with the State of New South Wales.
The evidence of Mr Gleeson, on the best analysis for the respondent, is that the applicant was working some 24 to 40 weeks in Australia per annum. Mr Gleeson also indicates that this arrangement changed in 2015 to a much higher proportion but does not provide assistance as to when that occurred, be it before or after the applicant’s injurious event.
The respondent submits that that the applicant was required to travel for a large part of the year outside Australia. The evidence of Mr Gleeson is of limited use save to say that the applicant was in Australia for at least 24 weeks per annum up until a time in 2015. This is not consistent with a finding that the applicant was required to travel for a large part of the year outside Australia causing him to fall outside of the provisions of section 9AA(3)(A).
The applicant’s evidence is that he was working in Australia however was required to travel to Malaysia four times a year and other places as required. The applicant had a residential address in New South Wales and had the use of a motor vehicle in New South Wales.
The treating general practitioner notes also are supportive of a finding that the applicant was domiciled in New South Wales as he has a local general practitioner who he consults with regularly about other matters not just his workplace injury. These are all factors which support a finding that the applicant usually worked in the state of New South Wales and as such his employment was connected to that State.
On the basis of those findings I find the applicant’s employment was connected with the State in which the worker usually works in that employment, which is New South Wales.
I was helpfully referred to the decision of Workers Compensation Nominal Insurer v O’Donohue [2014] NSWCCPPD (O’Donohue) wherein guidance is provided that one must look where the applicant habitually lives. In this case, I have found the applicant habitually lived in New South Wales for the purposes of performing his duties for reasons outlined above.
The respondent expressed concern that the applicant had not filed tax returns in Australia which would have assisted in the determination of who the correct employer was. I agree that provision of tax returns does assist in determining who the correct employer was.
I do not make any further comment about the applicant’s credit in relation to this. I do not have enough information in relation to the failure to file tax returns, that is the requirements to do so and the reasons for not doing so to make an adverse finding.
In any event the existence of the employment contract, to my mind, is of such persuasion that the nonexistence of tax returns does not cause me any concern in relation to my findings of employment.
ORDERS
Brian Smith was in employment connected with New South Wales (as prescribed by section 9AA of the 1987 Act).
Mr Smith suffered an injury on 17 August 2015 in New South Wales.
The applicant was employed by Goodway Integrated Industries Berhad (GIIB Group) (a Malaysian Company).
The Nominal Insurer is to pay any compensation including reasonably incurred section 60 expenses and costs awarded against the employer from the Workers Compensation Insurance Fund pursuant to s 154D of the 1987 Act.
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