Workers Compensation Nominal Insurer v O'Donohue
[2014] NSWWCCPD 1
•16 January 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1 | ||
| APPELLANT: | Workers Compensation Nominal Insurer | ||
| FIRST RESPONDENT: | Anthony Paul O’Donohue | ||
| SECOND RESPONDENT: | MEI Live Ltd | ||
| FILE NUMBER: | A1-10727/12 | ||
| ARBITRATOR: | Mr R Foggo | ||
| DATE OF ARBITRATOR’S DECISION: | 16 October 2013 | ||
| DATE OF APPEAL DECISION: | 16 January 2014 | ||
| SUBJECT MATTER OF DECISION: | Whether employment connected with New South Wales; s 9AA of the Workers Compensation Act 1987; current weekly wage rate; calculation of weekly compensation for partial incapacity prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; s 42 Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |
| First Respondent: Second Respondent: | Beilby Poulden Costello | ||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 3, 4, 5, 6 of the Arbitrator’s determination of 16 October 2013 are confirmed. 2. Paragraph 2 of the Arbitrator’s determination of 16 October 2013 is revoked and the quantification of the worker’s entitlement to weekly compensation is remitted to another Arbitrator for re-determination and for all necessary and appropriate orders to be made. 3. Costs of the second arbitration are to follow the event of that arbitration. 4. The appellant is to pay the first respondent’s costs of the appeal, as agreed or assessed. | ||
INTRODUCTION
Anthony O’Donohue is a professional actor/performer who lives in Sydney. He ruptured his Achilles tendon on 20 July 2010 while performing the role of Ben Tennyson in Ben 10 Live – The Power of the Omnitrix in Bahrain under a contract with MEI Live Ltd (MEI), a company registered in Hong Kong. (Ben 10 is an American media franchise produced by Cartoon Network Studios. The original series was about a boy (Ben Tennyson) who acquires a watch-like alien device, called the Omnitrix, which allows him to turn into alien creatures.)
The main issue in this appeal is whether Mr O’Donohue is entitled to compensation for his injury under the New South Wales Workers Compensation Act 1987 (the 1987 Act) on the ground that his employment with MEI was “connected with” New South Wales under s 9AA of that Act.
In summary, s 9AA(3) provides a series of cascading tests to determine the State with which the employment is connected. First, employment is connected with the State in which the worker usually works. Second, if no State is identified by the first test, one looks to the State in which the worker is usually based for the purposes of that employment. Third, if no State is identified by the second test, one looks to the State in which the employer’s principal place of business in Australia is located.
Mr O’Donohue claimed compensation from MEI and, as that company was not insured in New South Wales, from the Workers Compensation Nominal Insurer (the Nominal Insurer). He argued that he satisfied all three tests in s 9AA(3). His main arguments were that:
(a) he usually worked in New South Wales and the arrangement with MEI involved the likelihood of future performances in Australia (including Sydney);
(b) he was based in Sydney;
(c) he auditioned for the role at the Sydney home office of MEI’s executive producer;
(d) he rehearsed for the role in Sydney, as required by the contract;
(e) his contract required MEI to provide him with airfares from Sydney to Bahrain to Sydney, and
(f) as MEI’s executive producer was based in Sydney, her home office was MEI’s principal place of business in Australia.
MEI has taken no part in the proceedings, but the Nominal Insurer has disputed liability on the ground that, as the contract was for a performance outside New South Wales, and as the contract was made in Hong Kong, Mr O’Donohue’s employment was not “connected with” New South Wales under s 9AA. It also disputed incapacity, the current weekly wage rate and the quantum of Mr O’Donohue’s entitlement to weekly compensation.
The Arbitrator found that Mr O’Donohue’s employment with MEI satisfied all three of the tests in s 9AA(3) and he made an award in Mr O’Donohue’s favour. On 16 October 2013, the Commission issued the following Certificate of Determination:
“The Commission determines:
1. The applicant's employment with the first respondent is connected with New South Wales, within the meaning of section 9AA of the Workers Compensation Act 1987.
2. The respondent is to pay the applicant weekly payments of compensation from 27 July 2010 to 11 October 2010 at the rate of $1,100 a week and thereafter from the 12 October 2010 to 19 January 2013 at the maximum statutory rate for a worker with no dependents.
3. The respondent is to pay the applicant's section 60 expenses on production of accounts and or/receipts and/or Medicare Notice Charge.
4. The applicant’s claim for lump-sum compensation is reinstated and part 5.6 of the Application is amended to add the following: ‘20 July 2010 – secondary psychological injury’.
5. The claims for lump-sum compensation are remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment of the applicant’s left lower extremity. The documents to be provided to the AMS are those set out in [9] in the following Reasons.
6. The respondent is to pay the applicant’s costs as agreed or assessed, and I certify and uplift for complexity of 30% for both parties.
A brief statement is attached to this determination setting out the Commissions reasons for the determination.”
The Nominal Insurer has appealed the Arbitrator’s determination on the grounds that the Arbitrator erred in:
(a) his application of s 9AA (application of s 9AA);
(b) finding Mr O’Donohue to be totally incapacitated for the period 20 July 2010 to 11 October 2010 (total incapacity);
(c) his determination of the current weekly wage rate (current weekly wage rate);
(d) failing to assess Mr O’Donohue’s entitlement under s 40 of the 1987 Act during the period of partial incapacity (entitlement under s 40), and
(e) failing to nominate the party against whom his findings were made and failing to make any order the Nominal Insurer could be required to act upon (formal orders).
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
FACTUAL BACKGROUND
Mr O’Donohue was born in Adelaide, South Australia, in 1977. He has worked in the entertainment industry since he was a child. He has worked on the children’s television program Here’s Humphrey and on other well-known productions. Between 1994 and 2007, he has given dramatic performances for several companies, such as Disney, Warner Bros, Nickelodeon and others.
Mr O’Donohue said that he was “first employed by MEI” as a host of live shows in Dubai in 2003. His contract for that engagement identified Millennium Entertainment Int’l Pty Ltd as his employer. The contract required him to rehearse for, and perform in, the Dubai Summer Surprises 2003 from 26 May 2003 to 29 August 2003. The body of the contract stated that “MEI will provide”, among other things, return economy airfares to Dubai.
After the recording of the last series of Here’s Humphrey in 2007, Mr O’Donohue moved to the United Kingdom where he worked as the live events project manager for HIT Entertainment UK. Because of the global financial crisis, plans to work as the creative director for that company in Los Angeles did not eventuate. When his visa expired at the end of 2008, Mr O’Donohue returned to Australia. Since early 2009, he has lived in Sydney and, in the middle of that year, he engaged a Sydney agent.
Mr O’Donohue gave evidence that in 2009 he “was employed by MEI as a host of a live show in Jakarta and Singapore on the live production of Ben 10”. He attached a copy of the contract for the Singapore engagement, which identified his employer as “MEIA (S) Pte [sic] Ltd” of Singapore. As with the 2003 contract, each contract stated that “MEI will provide”, among other things, return economy airfares to Singapore and Jakarta respectively.
On 17 March 2010, Mr O’Donohue auditioned for the role of Ben Tennyson in Sydney at the home office of MEI’s executive producer of Ben 10, Kym Halpin. It was his understanding that the role included live performances in the Middle East and Australasia (including Sydney). This audition was taped to obtain approval from Cartoon Network, the owner of the brand Ben 10. Mr O’Donohue received that approval on 24 March 2010. Though there was a performance in Jakarta, which required someone to play Ben Tennyson, Mr O’Donohue was unable to perform, as he had not received enough training.
In response to an email from Mr O’Donohue dated 17 March 2010, Ms Halpin sent the following email to Mr O’Donohue on 24 March 2010:
“Anthony Hi,
Kerryn has approved you to be Ben in POTOI
So that’s exciting news for both of us.However,
Don’t panic just yet. I think you and I can sort you out in the role and when we need to without taking you to Jakarta.
Nick [Larkin] is negotiating with Abu Dhabi, Qatar and Bahrain for a season in July (about 3 weeks I think)
WHEN he gets this confirmed I will know when we need you for.
The proposed Australian season is not till last week in September and first two weeks of October and if the July dates don’t happen then this will be the first gig.
I will be in touch when I know more and when I know more will be the right time to bring your agent into in [sic].
I really don’t have anything to tell her at the moment.
xx Kym”(The reference to Kerryn was a reference to Kerryn McCormack, associate director with Cartoon Network Enterprises, Turner Entertainment Networks Asia.)
Ms Halpin’s email address was [email protected].
In or about April 2010, Mr O’Donohue received a video from Ms Halpin in preparation for rehearsals in Sydney in late June 2010.
On 8 June 2010, Mr O’Donohue’s agent, Emma Brady or Sophie Jermyn at Sophie Jermyn Management, received an email from Nick Larkin, a man described as “Chief Dreamer” with MEI and MEI Theatrical Ltd. It states:
“Sophie,
I was passed your contact from Anthony O’Donohue.
We would be very happy to welcome Anthony into the MEI Live and Ben 10 families in the role of Ben Tennyson for our upcoming Bahrain Season in July and Australia in September – October for Ben 10 Live – The Power Of the Omnitrix.
The show had its world premier [sic] in Bangkok in November 2009 and has since played in Singapore, Malaysia, Jakarta and Dubai.
The next season is in Bahrain from 17 July to 25 July (inc travel days) with rehearsals in Sydney before hand. The Bahrain season will be 12 shows over four performance days.
The Australia season will open Sept 17th Brisbane and travel six major cities ending in Perth in October 10th.
Over the course of the next 12 months the show will travel to Abu Dhabi, Beirut, Qatar [,] Hong Kong, Manila, Taipa, Seoul, and Mumbai[,] Delhi and Shanghai to name a few.
My company, which is licensed by Cartoon Network to produce the show, is a Hong Kong registered entity and the artists are contracted with the Hong Kong Company. The agents we work with regularly like Grayboy, Detour and Bozanic are familiar with how we work and I am sure will offer a reference if you need it.
The weekly playing fee we are offering Anthony is AUD$1,300 per week (inclusive) plus a daily per diem when overseas of US$40 plus min [sic] 4 star hotel including breakfast and fully comprehensive travel insurance. Things will change slightly when the performers return for the Australian season, as the Australia promoter will then provide [a] living away allowance under the Australia award. Performers are paid fortnightly by direct deposit into their bank accounts. Perdiem [sic] is paid weekly in cash in local currency.
Travel is economy on a 4 or 5 star carrier i.e. Singapore, Qantas, Cathay, Thai, Malaysian, British Airways etc.
I can have Yvonne from my Hong Kong office prepare the contract for Bahrain as soon as we have heard back from you.
I am travelling to the USA as of tonight and the UK the week of 12th June if you wish to talk to me personally I can be contacted on the following Sydney number xx xxxx xxxx (technology working it should divert to the local number I am on) failing that if you are on Skype my Skype ID is xxxxxx.
I look forward to hearing from you.
Nick Larkin – Chief Dreamer
MEI Live Ltd, MEI Theatrical Ltd
…
MEI – putting smiles on people’s faces across the world -”
Mr Larkin’s email address was [email protected].
On or about 8 June 2010, Mr O’Donohue received the contract of employment (the 2012 contract) from MEI. That document provided:
“This letter of employment is dated the 8th day of June 2010 and serves as a contract between MEI Live Limited, 2/F., The Strand, 49 Bonham Strand East, Hong Kong (as the Employer) and as the artist:
Name: Anthony O’Donohue
Address: PO Box 7333 Bondi Beach, Sydney NSW 2026 Australia
Details of Employment
The Event: BEN 10 Live – Power Of The Omnitrix
Date of Engagement: Bahrain
17-24 July, 2010 (including travel and rehearsal subject to change)
Show Date: 20 – 23 July, 2010
Rehearsal in Sydney: 29-30 June from 10:00am to 5:00pm
Rehearsal venue: Horizon Pilates 362, Riley St Surry Hills.
Travel Route: Sydney – Bahrain – Sydney
Travel Date: Depart Sydney to Bahrain on 17 July
Depart Bahrain to Sydney on 24 July(dates subject to change on confirmation and availability of flights)
Rehearsal Fee: AUD 865.86 per 6 day week pro rata. (daily rate equates to 144.31)
Fee:AUD 1,300 per week pro rata for up to 12 shows per 6 day week. Each additional show paid at a pro rata rate.
TOTAL PACKAGE: Rehearsal and Travelling Date
6 days x AUD144.31 = AUD865.86
(17-19 & 24 July 2010)
Performance date
4 days x AUD216.67 = AUD866.68
(20-23 July, 2010)
Total = AUD1,732.54
Role:Ben Tennyson
MEI will provide: Economy air-travel
20kg luggage allowance
Single room hotel accommodation or Single room in a shared serviced apartment. Accommodation is minimum 4 stars including breakfast.
USD 40 per diem (per day) in local currency
Airport and local transfers whilst overseas.
Travel insurance
The Artist:Agrees to abide by the rules of the venue and laws of the countries of performance as set out in Schedule (A)
Special Note: The main language of performance is English except in Thailand where a number of scheduled performances will be in Thai and the artist will be required to lip-sync.” (emphasis included in original)
Mr O’Donohue signed the contract and returned it to Ms Jermyn on 18 June 2010. (The parties appear to have accepted that Mr O’Donohue’s agent emailed the contract to MEI in Hong Kong on or about 18 June 2010.) Schedule A to the contract provides, among other things, certain conditions, including a statement that, in the case of injury or sickness, the artist will be sent home at the discretion of MEI’s management. With respect to sickness, schedule B to the contract provides, among other things, depending on the nature of the illness, and the time off needed, the performer would be paid sick pay. Should the illness require hospitalisation or seven to 10 days off, MEI would consider sending the performer home.
On 29 and 30 June 2010, Mr O’Donohue attended two full days of rehearsal in Sydney for his role as Ben Tennyson. Ms Halpin attended “to direct”, as the executive producer. It was Mr O’Donohue intention to be based in New South Wales and to fly out to various places in which the live performances were to take place.
On 15 July 2010, Mr Larkin wrote the following email to Ms Jermyn:
“Dear Sophie
Hi we haven’t met formally, however I am the co owner and Executive Producer of MEI Live who is producing the Ben 10 Live show that Anthony is performing in Bahrain and in September in Australia. I am an Aussie and along with my partner Kate Oliver also a fellow Aussie we are based in Hong Kong where we produce live events across Asia – Pacific and the Middle East. Anthony has performed many times for me dating back to around 2003. I am thrilled to have Anthony back on the stage for me again.
As no doubt Anthony has told you we are bringing the Ben 10 show to Australia from September 18th to October 10th. This is a very big deal for us and for Cartoon Network and they are pulling out all stops to market the show. Ordinarily we may do a publicity call when we arrive into any given country or city when the actors are already on contract. However, Cartoon Network have requested some TV appearances and some radio or other possible appearances prior to the actors being in contract for the Australian season.
I would like to suggest a daily rate for the publicity that is equal to a pro rata performance fee that being AUD$230 per day.
So far the publicity being suggested is –
Nine Network –
Today show on 17, 18, or 19 August – no weather cross available so we’d do an interview with cast and suit appearances in the studio instead.
Mornings with Kerri Anne would love to have us all on the Morning Show on either 17, 18, or 19 August.
Recommendation: Lock in Today live from Melbourne late August, Mornings with Kerry [sic] Ann [sic] on Tue 17 August, then go for Breakfast Radio on 2DayFM Tue 17 August. Then we could do the PR appearance at midday on Tuesday from the Sydney Entertainment Centre.
I look forward to Anthony’s acceptance of the fee. We will need to formalise the fee in an agreement and send you a media release.
I will be writing to you separately on another issue of the potential use of photographs in print ads and a possible TVC.
Regards
NICK LARKIN”It is not known if the parties agreed on a fee for the proposed promotions in Australia.
On 17 July 2010, Mr O’Donohue flew from Sydney to Bahrain to perform in the show. He had a rehearsal at the Bahrain International Exhibition Centre on 19 July 2010.
On 20 July 2010, Mr O’Donohue was performing in the opening show when he ruptured his Achilles tendon. He was taken by ambulance to hospital. MEI’s local promoter arranged for an urgent flight to Sydney. Mr O’Donohue arrived in Sydney on 22 July 2010 and saw Dr Luntz, orthopaedic surgeon, and had surgery that day.
On 12 October 2010, Mr O’Donohue completed an Uninsured Liabilities Claim Form, which he submitted to the WorkCover Authority of New South Wales (WorkCover).
On 13 October 2010, Mr O’Donohue wrote to WorkCover stating, among other things:
“I am a professional actor/performer living and working based in NSW, I am a member of the actors union ‘Media Entertainment and Arts Alliance’ (MEAA) and my agent’s office is Bondi – Sophie Jermyn Management.
I was working as an actor for a company called Millennium Entertainment International (MEI), in a major ticketed show playing in the role of Ben Tennyson, in Ben10 Power of the Omnitrix. MEI operate a home based ticketed show production office out of Rozelle NSW, a non-ticketed show production office in Singapore and a head office in Hong Kong.
The work commenced here in Sydney where I first auditioned and subsequently rehearsed for the performance. I was then flown to Bahrain to perform the role of Ben Tennyson at the Bahrain International Exhibition Centre.
…”
On 6 December 2010, Ms Halpin signed a statement in which she said she was unaware of any connection between MEI and MEI Worldwide. She confirmed that she was the executive producer for MEI as at 8 June 2010 and was “involved in the employment but not the employing or contracting of Mr O’Donohue”.
By letter dated 23 December 2010, WorkCover disputed liability for Mr O’Donohue’s claim.
In late 2010 and early 2011, Mr Larkin provided information via several emails to an investigator retained by WorkCover. In answer to a question about the connection between MEI and MEI Worldwide, Mr Larkin said that “MEI Worldwide is a descriptor not an entity”. He said that Ms Halpin was engaged by MEI on a “per project basis” and that she was the executive producer as at 8 June 2010. MEI had no other employees living and working in Australia. MEI had no workers compensation insurance in New South Wales.
APPLICATION OF S 9AA
The Arbitrator’s reasons
The Arbitrator first dealt with the second test in s 9AA(3), that is, the “usually based” test. He said, at [23]:
“Firstly, [Mr O’Donohue’s] evidence is that ‘it was my intention at all times to continue to be based in NSW and fly out to the various places in which these live performances were to be undertaken.’ ([Mr O’Donohue’s] statement [42] at page 9 of the Application). As pointed out by Mr Morgan for the applicant, this statement was made before the applicant had obtained any legal advice or became aware that there was any issue as to the nature of his employment with the first respondent. [Mr O’Donohue] in his letter to the second respondent of 13 October 2010 (reply page 19) clearly sets out that he believed that he was based in New South Wales. In addition, it appears to me that the contract between the parties acknowledges where the applicant was based. The agreement, describes the travel route as Sydney – Bahrain – Sydney, acknowledging, it seems clear to me, where the applicant was based, and where the
performance was to take place. In schedule (B) set out a[t] page 27 of the Application, the agreement stipulates that ‘Should the nature of the illness require hospitalisation or 7 to 10 days MEI would consider sending the performer home.’ Both these matters it appears to me clearly acknowledge where the applicant was based, namely Sydney. He was flown from there to the performance and flown back to Sydney in the particular instance of the performance in Bahrain between 20 – 23 July 2010. Given that history and the previous contracts between the parties this would seem to be the norm.”
Accordingly, the Arbitrator was not persuaded that Mr O’Donohue was based in Bahrain for the purpose of his employment with MEI within s 9AA(3)(b). He returned to this test later in his decision.
The Arbitrator then referred to the third test, namely, the “principal place of business” test. He said (at [26]) there were a number of “pieces of evidence” that, apart from attending rehearsals and watching the video in New South Wales, suggested that New South Wales was “the State in which the employer’s principal place of business in Australia is located” in accordance with s 9AA(3)(c). The Arbitrator referred to Ms Halpin residing in Sydney and conducting auditions for the role at her home office, the fact that she was in attendance during the entire rehearsal for the role, and that she directed Mr O’Donohue in the rehearsal.
Without expressing any clear conclusion on the “principal place of business” issue, though he seems to have been of the view that MEI’s principal place of business in Australia was the home office of Ms Halpin, the Arbitrator then referred to the parties’ submissions on s 9AA(6), which were only relevant to the first test in s 9AA(3), namely, the “usually works” test, and said, at [35]:
“In my view the application of section 9 AA (6) to the present factual circumstances leads to a conclusion that [Mr O’Donohue] usually worked in New South Wales. The terms of each discrete agreement provided for flying [Mr O’Donohue] from Sydney to the venue for the performance and returning to Sydney. He was to be paid in Australian dollars – this arrangement went back to 2003 with his first engagement with [MEI]. It was modified slightly by Mr Larkin’s e-mail – in 2003 the daily allowance rate was paid in local currency in cash, but for the arrangements from June 2010 onwards this was to be paid in US dollars at a flat rate of US$40. In addition, the executive producer of the series of the live performances resided in Sydney, conducted auditions and rehearsals in Sydney, where she continued to reside and work for [MEI]. As executive producer she was responsible for all elements of the production of the series of live performances, although her recommendations as to the casting of the principal role of the production had to be approved by others.”
The Arbitrator’s reasoning at [35] was based on Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 (Knight) at [89], which dealt with the “usually based” test, not the “usually works” test.
Returning to the “usually based” test, the Arbitrator repeated (at [36]) that Mr O’Donohue regarded himself as being based in Sydney, noting that he had quit Adelaide to set himself up “as being based in Sydney in order to have better prospects of obtaining work” ([36]). He obtained further work with MEI after his initial period with them in 2003 and all of the instances of employment and proposed employment with MEI acknowledged that he would be flown from Sydney to the place of the live performance, have his accommodation and other expenses provided for him, and be flown back to Sydney.
The Arbitrator said there was no evidence “as to from whence [Mr O’Donohue’s] wages were paid”, but he was not persuaded “that the acceptance of the contracts took place in Hong Kong” ([37]).
The Arbitrator said the fact that Ms Halpin, the executive producer, resided in New South Wales was “significant” ([38]). When one added to that the fact that Mr O’Donohue flew out of Sydney and returned there after each performance overseas, and that his return airfares were a separate component of each individual contracted performance, the Arbitrator was persuaded that New South Wales was where Mr O’Donohue was “usually based for the purposes of his employment with” ([38]) MEI.
Submissions
Though experienced counsel, Mr Baker, appeared for the Nominal Insurer at the arbitration, its solicitor, Mr Dolan, has prepared the submissions on appeal. Mr Dolan submitted that the Arbitrator made the following factual errors:
(a) he thought (at [23]) that the relevant performance was to take place in Sydney rather than Bahrain;
(b) he asserted (at [23], [32], [35] and [36]) that there was a history of previous contracts between the parties when the only contract was that made on 8 June 2010;
(c) he rejected (at [25]) the fact that the only relevant activity related to the contract was rehearsals on two days and the viewing of the video;
(d) he rejected the submission that MEI had no premises in Sydney or New South Wales;
(e) in stating (at [26]) that Ms Halpin directed Mr O’Donohue at the rehearsals when there was no evidence that she was in attendance during the entire rehearsal or that she was also the director;
(f) in stating (at [35]) that all of the overseas engagements were with MEI and that Ms Halpin “continued to reside and work for the … employer”, and
(g) in not accepting that the contract was made in Hong Kong in circumstances where Mr O’Donohue forwarded his acceptance, via his agent, to MEI in Hong Kong.
Dealing with the “usually works” test, Mr Dolan submitted that the contract was made in Hong Kong for performance in Bahrain, subject only to two days of rehearsals in New South Wales. He argued that, when determining this test, the words “in that employment” require a contract of service with the employer. The only relevant contract is that signed by Mr O’Donohue on or about 18 June 2010. That contract called for performance “in that employment” in Bahrain.
Dealing with the “usually based” test, Mr Dolan noted that the sub-section concerns where the worker is “usually based for the purposes of that employment”. Applying the matters considered in Knight, Mr Dolan said that the following matters pointed to Bahrain as the place where Mr O’Donohue was usually based:
(a) the work location specified in the contract was Bahrain;
(b) the location Mr O’Donohue routinely attended during the term of the employment to receive directions in relation to the work was Bahrain;
(c) the location where Mr O’Donohue reported in relation to the work was Bahrain, and
(d) the location from which Mr O’Donohue’s wages were paid was Bahrain or Hong Kong.
Next, Mr Dolan appears to have challenged the Arbitrator’s statement (at [23]) that Mr O’Donohue had not received any legal advice prior to asserting in his statement of 24 August 2012 that it was his intention to at all times continue to be based in New South Wales.
Turning to the “principal place of business” test, Mr Dolan submitted that MEI did not have a principal place of business in Australia. He said that MEI only contracted with various individuals on an ad hoc basis as the need arose to fulfil the requirements for the staging of performances in various parts of the world. While it was anticipated that the show was likely to be produced in Australia, a local producer would have attended to the various contractual and production requirements consistent with the law in Australia.
With respect to s 9AA(6), Mr Dolan submitted that, historically, there was no relevant employer/employee relationship other than the instant contract. While MEI’s intention was to retain Mr O’Donohue, presumably through a local agent, that employment in the future related to the possibility that this arrangement would come to pass. In any event, the expectation was for a further series of “temporary arrangements”, none of which was to extend for six months in any State of Australia. The one certainty appears to have been that another agent would have been the employer for the purposes of those contracts, if and when they eventuated.
Discussion and findings
Legislation and general principles
It is first appropriate to consider the legislation. Section 9AA of the 1987 Act provides:
9AA Liability for compensation“
(1) Compensation under this Act is only payable in respect of employment that is connected with this State.
(2) The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3) A worker’s employment is connected with:
(a) the State in which the worker usually works in that employment, or
(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.
(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(5) If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if:
(a) the worker is in this State when the injury happens, and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(7) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.
(8) In this section:
‘ship’ means any kind of vessel used in navigation by water, however propelled or moved, and includes:
(a) a barge, lighter, or other floating vessel, and
(b) an air-cushion vehicle, or other similar craft,
used wholly or primarily in navigation by water.
‘State’ includes Territory and, in a geographical sense, a State’s or Territory’s relevant adjacent area as described in Schedule 1.”
The section provides that compensation is only payable under the 1987 Act in “respect of employment that is connected with this State”. The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under the 1987 Act “in respect of employment that is connected with this State” (s 9AA(2)).
To determine whether the employment is connected with New South Wales, sub-s (3) of s 9AA provides a series of cascading tests. First, a worker’s employment is connected with the State “in which the worker usually works in that employment” (s 9AA(3)(a)) (the “usually works” test). If that test provides an answer to the question, there is no need to proceed further.
In determining whether a worker usually works in a State under s 9AA(3)(a), regard must be had to the worker’s “work history” with the employer and the intention of the worker and employer. However, regard must not be had to any “temporary arrangement” under which the worker works in a State for a period of not longer than six months (s 9AA(6)).
If no State, or no one State, is identified by the “usually works” test, one applies the test in section 9AA(3)(b), which looks for the State “in which the worker is usually based for the purposes of that employment” (the “usually based” test). If that test provides the answer, there is no need to proceed further.
If no State, or no one State, is identified by the “usually based” test, one applies the test in section 9AA(3)(c), which looks for the State “in which the employer’s principal place of business in Australia is located” (the “principal place of business” test).
The tests in s 9AA(4) and (5) do not arise in the present case and do not need to be considered.
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.”
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.”
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.”
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.
The “usually works” test – s 9AA(3)(a)
Applying the above principles to the present case, the Arbitrator erred in finding that Mr O’Donohue “usually worked” in New South Wales. Applying the principles discussed in Martin, the place where a worker usually works is where he or she habitually or customarily works, or where he or she works in a regular manner. It does not mean the place where the worker works for the majority of the time.
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 the employer (s 9AA(6)). Regard must not be had to any temporary arrangement under which the worker works in a State for a period of not less than six months.
Sub-section (6) of s 9AA does not assist Mr O’Donohue. Even if it is assumed (in Mr O’Donohue’s favour, as the Arbitrator found) that his pre 2010 contracts were with MEI, they do not establish that he usually worked, in his employment with MEI, in New South Wales. They demonstrate that he worked in different locations. In 2003, he worked in Dubai. In 2009, he worked in Singapore in June and in Jakarta in late June and July. (I should add that, contrary to Mr Baker’s submissions at the arbitration, I do not accept that Mr O’Donohue’s contracts were “temporary arrangements” within s 9AA(6). They were short-term contracts (Martin at [60]). However, for the reasons explained below, that does not assist Mr O’Donohue on the issue of where he “usually worked”.)
While it is correct that the earlier contracts provided for Mr O’Donohue to be flown from Sydney to the relevant venue and back to Sydney, that did not establish that, in respect of those contracts, Mr O’Donohue usually worked in New South Wales. For the Dubai contract, Mr O’Donohue rehearsed “in Australia” and performed in Dubai. For the Jakarta contract, he rehearsed and performed in Jakarta. Similarly, for the Singapore contract, he rehearsed and performed in Singapore.
Considering the 2010 contract, Mr O’Donohue rehearsed for two days in Sydney and for one day in Bahrain. But for his injury, he would have performed on four days in Bahrain. Thus, part of the work “in that employment” was in Sydney and part was in Bahrain. Though the contract provided that more of his working time was to be spent in Bahrain, that is not determinative of where he usually worked. The reality is that, under the 2010 contract, Mr O’Donohue worked partly in Sydney and partly in Bahrain.
Counsel for Mr O’Donohue, Mr Morgan, argued that, as there had been extensive discussions about him working in Ben 10 when the show came to Australia, and for the promotion of the show in Australia, that established that he usually worked in New South Wales. I do not accept that submission. The discussions about work in Australia were just that, preliminary discussions that were subject to final agreement and, if agreement was reached, a separate contract. Those discussions do not advance Mr O’Donohue’s position on this issue.
Mr Dolan’s submission that the contract was made in Hong Kong was correct, but irrelevant. Section 9AA does not turn on where the contract was made. It has a clear and specific regime that applies according to its terms. It makes no mention of where the contract is made. Therefore, that the contract was made in Hong Kong, because the acceptance was received in Hong Kong (Olivaylle Pty Ltd v Flottweg AG (No 4) (2009) 255 ALR 632), is of no consequence. Mr Baker (correctly) conceded as much at the arbitration when he said (at T22.48) that “acceptance internationally is in Hong Kong but it doesn’t matter under 9AA because it has its own methodology of approaching these matters”.
It follows that the “usually works” test does not provide an answer to the question. As no State, or no one State, is identified by the first test, it is necessary to move to the next test, the “usually based” test. While the Arbitrator considered this test, he wrongly considered it first rather than second.
The “usually based” test – s 9AA(3)(b)
It is convenient to repeat the Arbitrator’s main findings on this issue. The Arbitrator:
(a) noted that Mr O’Donohue’s intention was to be based in New South Wales;
(b) noted that the 2010 contract acknowledged that Mr O’Donohue was based in Sydney, which was evidenced by the contract providing that Mr O’Donohue was to be flown from Sydney to Bahrain and back to Sydney and by the term that, in the event of illness, MEI would consider sending the performer home;
(c) said that he was not persuaded that acceptance of the contract took place in Hong Kong, and
(d) thought it significant that Ms Halpin, the executive producer, resided in New South Wales and that she “conducted auditions and performances and gave directions necessary in relation to the live performance from New South Wales” ([38]).
Though the Arbitrator was wrong to conclude that the contract was not made in Hong Kong, that error has not affected the outcome because the location in which the contract is made is not determinative of the state of connection in s 9AA.
Mr Dolan has criticised the Arbitrator’s reliance on Mr O’Donohue’s evidence that his intention was to be based in New South Wales. His criticism is that, contrary to the Arbitrator’s assertion, Mr O’Donohue’s statement of 24 August 2012 would have been provided after he obtained legal advice and, presumably, was not entitled to any weight.
Mr Dolan’s criticism on this point is not well founded. While the Arbitrator’s observation that Mr O’Donohue’s statement of 24 August 2012 was made before he had obtained legal advice may well have been wrong, that error is of no consequence. That is because the assertion that Mr O’Donohue considered himself to be based in Sydney was first made in his letter of 13 October 2010, which was well before any legal proceedings had been instituted and, by inference, before he obtained legal advice. The Arbitrator referred to this letter at [23] of his reasons and he was entitled to consider it in determining where Mr O’Donohue was “usually based”, though it was clearly not determinative and not treated as determinative.
Mr Dolan’s other points dealing with this test do not advance his client’s position. The submission that the location specified in the contract was Bahrain was not accurate and has ignored the full terms of the contract. As noted earlier, the contract provided for Mr O’Donohue to work in Sydney and Bahrain. The work in Sydney was the two days of rehearsals between 10 am and 5 pm on 29 and 30 June 2010 for which a specific fee was paid. The rehearsals were part of the “TOTAL PACKAGE” in the contract and it is not open to ignore them or treat them as irrelevant.
The submission that the location where Mr O’Donohue routinely attended during the term of the employment to receive directions in relation to the work was Bahrain (and only Bahrain) is flawed for the same reason. Mr O’Donohue attended the rehearsal venue at Surry Hills (in New South Wales) to receive directions in relation to the work and to rehearse for the role.
For the same reason, the submission that the (only) location where Mr O’Donohue reported in relation to the work was Bahrain is also wrong. He reported to Surry Hills in Sydney for rehearsals and the rehearsals were an integral part of the work Mr O’Donohue was contracted to perform.
The evidence is silent as to the location from which Mr O’Donohue’s wages were paid. The contract provided for a daily fee of USD $40, paid weekly. As the daily fee was paid in the relevant local currency, it is assumed that it would have been paid in Bahrain. It is unclear if Mr O’Donohue received this amount. MEI paid the balance of the fee into Mr O’Donohue’s bank account. While there is no direct evidence on this, as Mr O’Donohue lived in, and was based in, Sydney, it is reasonable to conclude that his bank account was in Sydney. The fact that the money may have come from Hong Kong is of limited relevance: Mr O’Donohue was not based in Hong Kong. It follows that, as most of the fee was (most likely) paid to Mr O’Donohue in New South Wales, this provides a further ground in support of the finding that Mr O’Donohue was “usually based” in New South Wales.
The Arbitrator’s second point on the “usually based” test – that the contract acknowledged that Mr O’Donohue was based in Sydney – was correct and provided strong support for his conclusion on this issue. Though the contract only gave a post office box number at Bondi as Mr O’Donohue’s address, it acknowledged that Mr O’Donohue was based in Sydney. The travel route noted in the contract, namely “Sydney – Bahrain – Sydney”, also confirms that Mr O’Donohue was based in Sydney. MEI agreed to pay the economy airfare for that route, and no other. This provided strong objective evidence that confirmed Mr O’Donohue’s assertion in his October 2010 letter that he was based in Sydney.
That Ms Halpin resided in Sydney seems to me to have been of little relevance to the application of the “usually based” test, though it is relevant to the “principal place of business test”. However, the Arbitrator’s reliance on Ms Halpin’s residence when considering the “usually based” test does not detract from the other matters, referred to above, which firmly establish that “for the purposes of [Mr O’Donohue’s] employment” with MEI he was “usually based” in Sydney.
It should be remembered that the “usually based” test does not involve the application of any specific, pre-set, criteria. Each case will depend on its own facts. Having regard to the matters discussed above, the Arbitrator’s conclusion that Mr O’Donohue was usually based in New South Wales was correct.
The “principal place of business” test – s 9AA(3)(c)
As the “usually based” test provides the State with which Mr O’Donohue’s employment with MEI was connected, it is not necessary to consider the “principal place of business test”. However, given the Arbitrator’s reasons, and the submissions made on appeal, I make the following observations on this issue, but express no concluded view.
The Arbitrator seems to have concluded, though it is far from clear, that MEI’s principle place of business in Australia was Ms Halpin’s home office at Rozelle. His reasoning was that Ms Halpin was the executive producer of the “series of events in which [Mr O’Donohue] was engaged” ([26]) and she conducted auditions in her home office for the role Mr O’Donohue was to play. In addition, she was in attendance during the entire rehearsal for the role and she directed Mr O’Donohue in the rehearsal. She was located in Sydney and, as executive producer, was “involved in the employment but not the employing or contracting of Mr O’Donohue” ([26]).
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]).
In the present case, it is important to note that s 9AA(3)(c) is concerned with the “State in which the employer’s principal place of business in Australia is located” (emphasis added). It therefore does not matter that the employer’s main business, or registered office, is located overseas. The provision directs attention to the employer’s principal place of business in Australia. That does not exclude the possibility that its main business activities may be based overseas.
The evidence is that MEI is registered, and based, in Hong Kong. Its business is the production and promotion of live shows, like Ben 10, which are then performed in different countries in Asia, the Middle East and Australia. To that end, MEI engaged an executive producer in New South Wales, Ms Halpin, who works from her home office in Rozelle, Sydney.
An essential part of the production of Ben 10 Live – The Power of the Omnitrix was the selection of an actor to play the central role of Ben Tennyson. The auditions for that role took place at Ms Halpin’s home office at Rozelle on 17 March 2010. Whether there were other auditions for that role outside Australia is not known but not relevant.
In or about April 2010, Mr O’Donohue received a video from Ms Halpin in preparation for rehearsals in Sydney in late June 2010.
As required by the contract, Mr O’Donohue attended rehearsals for the role of Ben Tennyson in Sydney on 29 and 30 June 2010. Though those rehearsals were not at Ms Halpin’s residence, Mr O’Donohue gave uncontradicted evidence that Ms Halpin attended the rehearsals to “direct”, as executive producer. (The challenge to the Arbitrator finding that Ms Halpin directed Mr O’Donohue at the rehearsals is without foundation. The evidence in support of the Arbitrator’s finding is found in Mr O’Donohue’s uncontradicted statement.)
The evidence therefore establishes that MEI conducted an integral part of its business (of producing live shows) in New South Wales. There being no evidence that MEI conducted any part of its business in any other State or Territory in Australia, the compelling conclusion is that MEI’s chief, or most important, place of business in Australia was in Sydney. More precisely, it was at Ms Halpin’s home office at Rozelle. That follows notwithstanding that the rehearsals were held at different premises.
While it is true that MEI has no premises in Sydney or New South Wales with its name displayed, and it does not own or lease premises in New South Wales, that is not the test. What is required to establish a State of connection in s 9AA(3)(c) is a place in a State in which the employer’s principal place of business in Australia is located. That requires a consideration of the nature of the business concerned and the nature of the activities conducted in New South Wales to further that business.
Having considered those matters it follows that, in the alternative to succeeding under the “usually based” test, but without deciding it, Mr O’Donohue may well also have been entitled to succeed because the State in which MEI’s principal place of business in Australia was located was New South Wales.
TOTAL INCAPACITY
Arbitrator’s reasons
After noting that Mr O’Donohue suffered a ruptured Achilles tendon that required surgical repair and that, as a result of the effects of the injury, Mr O’Donohue developed anxiety and depression, the Arbitrator said (at [41]) that Mr O’Donohue was totally incapacitated from 20 July 2010 to 11 October 2010, noting “there was no evidence to the contrary”.
Submissions
Mr Dolan submitted that the Arbitrator erred in stating that, on the issue of total incapacity, there was “no evidence to the contrary”. He referred to Mr O’Donohue’s statement on 24 August 2012 that, since his injury, he continued to be employed as a voice over artist and that he averaged approximately $612.52 per week. He also referred to Mr O’Donohue’s unsigned statement at page 101 of the Application to Resolve a Dispute where he said he took work from a chair four weeks after his operation, that is, from 19 August 2010, and the assertion in the claim form that Mr O’Donohue was totally unfit from 20 July 2010 to 30 August 2010 and partially unfit from 30 August to 3 February 2011.
Mr Morgan referred to the evidence from Dr Luntz that Mr O’Donohue was totally unfit from 20 July 2010 to 11 October 2010, but conceded that in the event there were actual earnings in part of that period, the Arbitrator erred in finding total incapacity. He also suggested that, if Mr O’Donohue succeeded on the s 9AA issue, the parties be given the opportunity to agree on orders in respect of weekly compensation.
Discussion and findings
Mr Dolan’s submissions have ignored the submissions made at the arbitration. Mr Baker accepted (at T36.32) Mr Morgan’s submission (at T18.45) that, relying on Dr Luntz’s evidence, Mr O’Donohue was totally incapacitated from 20 July 2010 to 11 October 2010. While Mr Baker did not address on any of the evidence now relied on by Mr Dolan, and it is not normally open to argue that an Arbitrator erred by accepting a concession by one of the parties, given Mr Morgan’s concessions on appeal, I will revoke this part of the order and remit it for re-determination before a different Arbitrator.
CURRENT WEEKLY WAGE RATE
Arbitrator’s reasons
The Arbitrator said that Mr O’Donohue’s total earnings, as disclosed in his 2010 tax return, namely $52,582, should be “the basis of his current weekly wage rate which equates to weekly earnings of $1,100” ([41]).
Submissions
Mr Dolan submitted that the Arbitrator:
(a) failed to apply s 42(d) of the 1987 Act;
(b) applied the earnings for the 2010 financial year which, apart from the two rehearsal days on 29 and 30 June 2010, pre-dated the worker’s earnings subject to the relevant contract;
(c) adopted the gross figure of all Mr O’Donohue’s earnings in the financial year for 2010, and
(d) applied $1,100 when that figure, though included in the late wages schedule, was not based on any evidence.
Mr Morgan submitted that the Arbitrator explained his reasoning process and that process was sound and disclosed no error. In the event that the Arbitrator failed to apply s 42 of the 1987 Act that failure could be addressed with an adjustment to the amount of compensation payable.
Discussion and findings
A worker’s current weekly wage rate is normally calculated by reference to one of the three methods in sub-ss (a), (b), and (c) of s 42(1). If none of those methods apply to the worker, as may be the case in the present matter, then the current weekly wage rate is the prescribed proportion of the worker’s average weekly earnings in respect of the work being performed by the worker immediately before becoming incapacitated. The prescribed proportion is 80 per cent (s 42(8)).
A worker’s average weekly earnings are calculated in such manner as is best calculated to give the rate per week at which the worker was being remunerated except that if, because of the shortness of time during which the worker was in the employment of the employer, or the terms of the employment, it is impractical at the date of injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned by a person in the same grade or in the same classification (s 43(1)(a)).
As the Arbitrator did not refer to s 42(d), or s 43, his figure for the current weekly wage rate cannot stand. However, in the absence of any useful submissions by the parties on appeal on this issue, the appropriate course is for this matter to be remitted for re-determination.
ENTITLEMENT UNDER S 40
Arbitrator’s reasons
The Arbitrator accepted (at [40]) Mr Morgan’s submission that the best measure of Mr O’Donohue’s capacity after his injury (and, presumably, after the period of total incapacity) was his actual earnings. The Arbitrator said that Mr O’Donohue had demonstrated a willingness to endeavour to get back into the workforce and he saw no reason to consider his capacity to earn was reflected by anything other than his actual earnings.
Noting (at [42]) that Mr O’Donohue’s 2013 tax return demonstrated actual earnings of $600 per week, the Arbitrator found him entitled to weekly payments of compensation from 12 October 2010 to 19 January 2013 at the maximum statutory rate for a worker with no dependents. He said he had no jurisdiction to award weekly payments of compensation beyond 19 January 2013.
Submissions
Mr Dolan submitted that the Arbitrator erred in referring to the 2013 tax return when it was not in evidence. The latest tax return in evidence, being for the financial year ending 30 June 2012, demonstrated that Mr O’Donohue earned $34,736, an average of $668 per week, not $600 per week. Further, Mr Dolan submitted that the Arbitrator failed to follow the five steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 526.
Mr Morgan argued that Mr Baker conceded at the arbitration that Mr O’Donohue’s actual earnings were the best test for determining his ability to earn (T37.51). If there needed to be an adjustment of the mathematical amount “that would simply be reflected by the substituted current weekly wage rate”. Mr Morgan added that the compensation for the period from 1 January 2013 to 19 January 2013 should be under the amended s 37 of the 1987 Act, but the result should be the same.
Discussion and findings
The Arbitrator’s figures in support of his findings under s 40 were wrong and, as the current weekly wage rate must be re-determined, it is appropriate that the s 40 award also be re-determined.
FORMAL ORDERS
Arbitrator’s orders
The Arbitrator ordered “the respondent” to pay the weekly compensation he determined Mr O’Donohue was entitled to receive.
Submissions
Mr Dolan submitted that the Arbitrator failed to explain how Mr O’Donohue is “able to maintain these proceedings given the contract was made in Hong Kong” and MEI was never registered in New South Wales. If the Arbitrator was able to make such orders, he failed to nominate the name of the respondent liable to make compensation payments to Mr O’Donohue, failed to determine non-insurance in New South Wales, and failed to make appropriate orders for payment by Mr O’Donohue for the liabilities of the employer and orders for reimbursement by the employer to the Nominal Insurer.
Mr Morgan submitted that, because of the scheme in s 9AA, the Arbitrator did not need to have regard to where the contract was formed and the fact that MEI was never a corporation registered in New South Wales was irrelevant. He said that any orders required to formalise the Commission’s orders could be “dealt with on appeal”, noting that no specific submissions were made at the arbitration as to the need for specific orders.
Discussion and findings
The submission that Mr O’Donohue has not explained how he can maintain these proceedings was not made at the arbitration. The case proceeded on the accepted basis that, as MEI was not insured in New South Wales, Mr O’Donohue was entitled to orders against the Nominal Insurer.
As previously noted (see [63] above), Mr Baker (correctly) conceded that the fact that the contract was made in Hong Kong does not matter because s 9AA “has its own methodology of approaching these matters” (T22.48). Given this appropriate concession at the arbitration, which formed the basis on which the arbitration was conducted, Mr Dolan’s submission on appeal was surprising, to say the least. It is rejected. Section 9AA prescribes a clear scheme for determining if the relevant employment is connected with New South Wales. That scheme does not depend on where the contract was made.
I agree, however, that the Arbitrator failed to identify which of the two respondents is liable to satisfy the award and failed to make a finding of non-insurance. As the award of weekly compensation must be re-determined, these matters should also be the subject of orders at the re-determination.
CONCLUSION
The Arbitrator erred in concluding that, in his employment with MEI, Mr O’Donohue “usually worked” in New South Wales. However, the Arbitrator’s conclusion that New South Wales was the State in which Mr O’Donohue was “usually based for the purposes of” his employment with MEI was open on the evidence, notwithstanding his incorrect statement that the contract was not made in Hong Kong and his irrelevant reference to Ms Halpin residing in Sydney.
It follows that Mr O’Donohue is entitled to succeed with his claim and, except for the orders made with respect to the payment of weekly compensation, all other orders made by the Arbitrator are confirmed. The quantification of the claim for weekly compensation must be re-determined and appropriate orders made for the satisfaction of the award.
DECISION
Paragraphs 1, 3, 4, 5, 6 of the Arbitrator’s determination of 16 October 2013 are confirmed.
Paragraph 2 of the Arbitrator’s determination of 16 October 2013 is revoked and the quantification of the worker’s entitlement to weekly compensation is remitted to another Arbitrator for re-determination and for all necessary and appropriate orders to be made.
Costs of the second arbitration are to follow the event of that arbitration.
COSTS
Given that the Nominal Insurer has failed with its main ground of appeal, relating to s 9AA, and given that Mr O’Donohue is entitled to an award of weekly compensation and the only issue is the quantification of that award, and the making of appropriate formal orders, the appropriate order is that the appellant is to pay the first respondent’s costs of the appeal, as agreed or assessed, and that is the order I make.
Bill Roche
Acting President
16 January 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
7
7
0