East v AWMA Pty Ltd & Victorian WorkCover Authority [2013] VCC 637

3 Section 80 states:**

"(1) There is no entitlement to compensation under this Act other than 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 an entitlement to compensation arising 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) a 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 over the preceding 12 months and the intentions 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) Subject to subsection (6), in determining whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not under the statutory workers compensation scheme of that State the person is regarded as a worker or as working or employed in that State.

(8) 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.

(9) 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 -

(a) Territory; and

(b) the offshore area, within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth, of the relevant State or Territory."

4 The jurisdictional question to be addressed by s80 sets out an hierarchy of factors to determine the certainty of location of employment where there are two workplaces, in this case north or south of the Murray River, which is the border between Victoria and New South Wales.

5 The plaintiff submits that the place where he usually works is set out in his Offer of Employment dated 18 September 2006 and signed by him on 21 September 2006.[1] In that contract of employment, the plaintiff's duties are set out as follows:

"Your position requires you to work under the direction and supervision of our Technical Services Supervisor, Stephen O'Donoghue, both in the factory and on site, as needs dictate."

"A living away allowance of $55 per night will be paid per night when you are required to travel away from your base of employment, Cohuna."[2]

**7 The contract of employment incorporates the Position Description as part of the contract.

8 The Position Description for the plaintiff designates Cohuna, Victoria as the location of employment.[3]

9 The plaintiff relies on the contract and documents to submit that his employment is connected to Victoria because he usually works in Victoria pursuant to that contract of employment. The plaintiff also submits he is based in Victoria for the purpose of his employment.

10 The defendants submit that the plaintiff usually works in the State of New South Wales. The defendants rely on the fact that the plaintiff lived in Deniliquin. The plaintiff attended the first defendant's depot/office in Wood Street, Deniliquin before attending for work on sites throughout New South Wales for the Murray Irrigation Project Contract ("MIP") undertaken by the first defendant.

11 The defendants submitted that the plaintiff had received worker's compensation payments and medical expenses from the New South Wales Worker's Compensation Scheme consistent with the plaintiff's usual work being in New South Wales. The defendants submit that the overwhelming percentage of work performed by the plaintiff over the course of his employment was done in New South Wales. Consequently, the plaintiff has no entitlement to compensation in Victoria because his employment was not connected with the State of Victoria.

12 Section 80 of the Act sets out the test for employment that is connected with the State of Victoria as follows:

(a) the worker usually works in that employment; or

(b) where the worker is usually based for the purposes of that employment; or

(c) where the employer's principal place of business is located.

13 If these criteria do not resolve the issue of jurisdiction, then further criteria are set out in s80 of the Act.**

**14 I have heard evidence from Shane East, the plaintiff, and Brett Kelly, Managing Director of AWMA Pty Ltd, the first defendant in this case.

15 The plaintiff was employed by the first defendant for two temporary periods of employment commencing 16 May 2005[4] and 15 March 2006.[5] The relevant contract of employment for this proceeding was signed by the plaintiff on 21 September 2006.

16 The contract of employment is documented by the signed Offer of Employment dated 18 September 2006, from the first defendant to the plaintiff. The plaintiff accepted and signed the Offer of Employment on 21 September 2006.[6] The contract of employment also referred to and included the documents "Position Description - Installer". The Position Description relied upon by both parties in this proceeding was dated 12 May 2008.[7]

17 The Offer of Employment sets out the plaintiff's duties as follows:**

"Your position requires you to work under the direction and supervision of our Technical Services Supervisor, Stephen O'Donoghue, both in the factory and on site, as needs dictate."[8]

"A living away allowance of $55 per night will be paid per night when you are required to travel away from your base of employment, Cohuna."[9]

19 The Position Description document nominates:

**20 I conclude that, based on the documentation relied on by the parties in this proceeding, the terms of the contract stipulate Cohuna as the place of employment. This conclusion is not the end of considerations for resolving the issue of jurisdiction in this proceeding.

21 The phrase "usually works" has been held to mean "customarily", "frequently", "regularly" or "habitually" works. It does not involve a quantitative test of exactly how many days the plaintiff works at one place or another.[11]

22 The plaintiff, Mr East, lived in Deniliquin, New South Wales, for the whole period of his employment with the first defendant. He would regularly attend the first defendant's "depot" in Wood Street, Deniliquin to obtain tools and supplies for the purposes of his work. He also had access to a telephone and a facsimile machine in an "office" at the Wood Street premises. He did not perform his work as an installer at the Deniliquin depot. The plaintiff's work was "onsite" installation of irrigation gates in southern New South Wales and elsewhere as directed by the first defendant.

23 In his evidence, the plaintiff said the depot was MIP property and AWMA Pty Ltd used it as a depot. He stated the office was little more than a dilapidated hut and the storeroom at the premises was a half container that was lockable. He obtained the keys to the gate of the Wood Street premises from MIP, not his employers.

24 Mr Kelly was unable to say if his company leased the site at Wood Street, Deniliquin. He confirmed that there was a telephone and facsimile machine at that premises. Mr Kelly said his company used the premises to store gates and other supplies for installations on the MIP. The first defendant did not have any staff based at the Wood Street premises.

25 The plaintiff stated that he had most of his work supplies in his truck or trailer. He would re-supply his vehicle either when he was in Cohuna or from the Wood Street depot. The plaintiff also used the Wood Street depot to fax some of his time sheets to the first defendant's head office in Cohuna.

26 On occasions, the plaintiff received written instructions for work via the facsimile machine at the Wood Street depot. He stated that he also got his order book from Cohuna or instructions over the company mobile phone. At all times his work was supervised by Mr O'Donoghue from Cohuna.

27 The plaintiff also attended and worked at the Cohuna head office and factory to work in manufacturing and testing of the irrigation gates. He attended the Cohuna office for training and instruction for jobs.

28 The plaintiff was required to work in South Australia, Queensland and Victoria as part of his usual work as an installer. Whilst the mathematical calculation of days worked is not determinative of where a worker usually works, it is a factor to take into account.[12] Mr Morfuni submitted that in the year 1 July 2009 to 30 June 2010, the plaintiff worked 112 days in Victoria and 107 days in New South Wales. Mr Chamings accepted that those figures were probably right but urged that the plaintiff had worked almost exclusively in New South Wales prior to that period.

29 Mr Chamings relied on figures deposed to by Mr Kelly over the total period of employment where the plaintiff worked 811 days in New South Wales, 155 days in Victoria, 34 days in Queensland and 13 days in South Australia.[13]

30 The plaintiff was injured on 4 June 2010 at Carrum Downs, Victoria.

Q: "You know he was injured when he was in Victoria at Carrum Downs?---

A: I do, yep.

Q: Was that a special job?---

A: A special job? It was a job.

Q: Why was it that Mr East was required to go from Deniliquin to that job?---

A: Shane was part of an install crew that worked across Australia at different times. Required to go to a lot of different locations."[14]

**32 Mr Kelly gave evidence that typically the plaintiff would work in southern New South Wales five to six months in a normal season.[15] The drought allowed the plaintiff to be allocated to southern New South Wales for a longer period than would be initially planned.[16] Mr Kelly stated that in a normal season, the plaintiff would work half the year in southern New South Wales and other half of the year elsewhere.[17]

33 I find that the plaintiff's employment with the first defendant required him to usually work in both Victoria and New South Wales.

34 The basis for finding the plaintiff usually worked both in Victoria and New South Wales are:**

• The plaintiff actually worked in both States.
• The first defendant directed the plaintiff's work from Cohuna, Victoria.
• The plaintiff attended the Cohuna base and the Deniliquin depot (New South Wales) in the course of his work.
• The contract of employment clearly states the employment is based in Victoria.
• The plaintiff lived in Deniliquin (New South Wales) and went directly from there to some work sites in southern New South Wales.
• In the year prior to injury, the plaintiff worked approximately equal periods of time in New South Wales and Victoria.
• Mr Kelly agrees that the plaintiff was meant to work six months in southern New South Wales and six months elsewhere in Australia as an installer.

35 The next consideration to determine the appropriate jurisdiction for this proceeding is to determine where the plaintiff was usually based for the purposes of his employment by the first defendant. The following considerations are to be weighed in determining "usually based" for the purposes of s80(3)(b) of the Act.

(b) the location the plaintiff routinely attends in the course of his employment to receive instruction, material and equipment;

(c) the location where the plaintiff reports in relation to his employment; and

(d) the location from where the plaintiff's wages are paid.

**36 I accept that the location of employment as set out in the contract of employment is Cohuna, Victoria. The Offer of Employment refers to the base of employment as Cohuna.[18] The Position Description nominates the location of employment as Cohuna, Victoria.[19] The plaintiff was paid a living away allowance between 2006 and 2008 pursuant to the contract of employment even though the plaintiff remained at his home in Deniliquin for most of that time. The payment of a living away allowance was confirmation of the contractual documentation that Cohuna was the base of employment for the plaintiff.

37 The location that the plaintiff routinely attended in the course of his employment depended in large part on where he was actually working at any given time. The evidence is clear and undisputed that the plaintiff received all his instructions for employment from the first defendant's head office in Cohuna, Victoria. The plaintiff did attend the "depot" at Wood Street, Deniliquin (NSW) to get faxed instructions from the makeshift office at that site. The other instructions the plaintiff received either came via the company supplied mobile phone or his attendance at the Cohuna office to get supplies and the job orders. A fair assessment of the evidence would lead to the conclusion that the plaintiff would attend the Deniliquin depot regularly whilst he was doing the MIP jobs but otherwise would attend Cohuna office for instruction, training or testing and manufacture of irrigation gates.

38 The plaintiff was primarily required to attend onsite locations to perform his role as an installer. The usual base for his employment was where he was required to work by the first defendant. Consistent with my previous findings on this issue, the plaintiff's location of work was both in Victoria and New South Wales.

39 In the course of his employment, the plaintiff was required to report to the first defendant at its head office in Cohuna, Victoria. He was required to send his time sheets either via facsimile or with fellow workers to be referred to Cohuna. He received his instructions and reported to his immediate supervisors, Mr O'Donoghue, Mr Dalrymple and Mr Ablett, either onsite or at the Cohuna head office of the first defendant.

40 The first defendant's managing director, Mr Kelly, deposed that the plaintiff's salary was paid according to the requirements of the New South Wales Office of State Revenue.[20] Mr Kelly did not say from where the salary for the plaintiff was paid; i.e. Cohuna head office, or some other office of the first defendant. Mr Kelly further deposed that the plaintiff's wages were declared pursuant to the New South Wales WorkCover Scheme.[21] The plaintiff was required to submit his timesheets to the Cohuna office of the first defendant. Mr Kelly gave evidence that the first defendant had no other offices than Cohuna.[22] Mr Kelly also stated:**

"Q: And you have never had an office in New South Wales?---

A: I've had employees living and working in New South Wales in Sydney and Deniliquin, but no registered office in New South Wales."[23]

**41 I conclude that based on this evidence, the payment of the plaintiff's wages or salary was made from the first defendant's office in Cohuna, Victoria.

42 I find that pursuant to s80(3)(b) of the Act, that the plaintiff's employment is connected with the State of Victoria because he is usually based at the first defendant's head office in Cohuna, Victoria for the purposes of that employment.

43 In the event that s80(3)(b) does not resolve the issue of the plaintiff's employment being connected to the State of Victoria, then s80(3)(c) puts the issue beyond doubt. The uncontradicted evidence is that the first defendant's principal place of business is Cohuna, in the State of Victoria.

44 I order that for the reasons set out above, the plaintiff has satisfied me that his employment with the first defendant had the requisite connection with the State of Victoria as required under s80 of the Act.

[1] Defendant's Court Book ("DCB") 10-11

[11] Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; (2006) 196 FLR 361; Tamboritha Consultants Pty Ltd v Knight (2008) 58 SR (WA) 291

[12] Avon Products Pty Ltd v Magrit Falls (2010) 5 ACTLR 34