Evans v Newserv Pty Ltd [2025] VMC 18

Magistrates' Court of Victoria|2025-12-17

WORKERS COMPENSATION - Truck-driver injured in Victoria - Whether employment connected with State of Victoria - Whether entitlement to compensation - Workplace Injury Rehabilitation and Compensation Act 2013 (VIC), ss 37, 314.

2. The parties seek a determination of the State with which Evans' employment with Newserv is connected for that purpose. The Court is required to make that determination and to enter such determination in the court records under s.314(1) of the WIRCA.

3. A preliminary hearing was conducted for this purpose. Counsel filed written submissions after evidence was heard from Evans and two witnesses for Newserv, Jason Bennett (Bennett) and Carl Willits (Willits).

4. It was submitted for Evans that his Newserv employment was sufficiently connected with Victoria either on the basis he usually worked in Victoria and/or he was usually based in Victoria.

5. On the other hand, Newserv submitted the Court could not be satisfied Evans usually worked only in Victoria; nor that he was usually based only in Victoria for the purposes of his employment.

6. It is convenient to set out the factual matters that were either agreed or not in dispute.

7. From about June 2023, Evans was employed by Newserv as a truck-driver. He worked until about 29 October 2023 (the employment period). His duties, in addition to interstate driving, included local deliveries and freight-handling as directed.

8. Evans lived in regional Victoria during the employment period as he has done for many years..

9. During the employment period, Newserv[1] operated a national transport business mainly up and down the eastern states.

10. Newserv's headquarters (and registered address) was at an address in Five Dock, a suburb of Sydney, NSW (Five Dock).

12. The parties executed a written contract of employment dated 27 June 2023 in standard form with an annexed Schedule 1 setting out details specific to the arrangement (the employment contract).

13. For the first few weeks of Evans's employment, Willits who was based at Five Dock was Newserv's national transport operations manager until Ashleigh Maher, also based at Five Dock, held that role until about 30 October 2023 when Willits resumed the role, again being based at Five Dock[2].

14. Bennett, Newserv's national sales manager, lived in Victoria and was based in his home state of Victoria[3] throughout the employment period.

15. Evans' employment duties were governed by the Heavy Vehicle National Law (the National Law) with associated record-keeping and driver fatigue management requirements. These requirements related to recording of driving times, breaks, odometer readings and so on in 'national driver work diary' daily sheets (the daily sheets).

16. Prior to submissions, by agreement, a large volume of text messages between Evans and Bennett and Evans and Willits/Ashleigh Maher as well as WhatsApp messages between Evans and Newserv staff were tendered into evidence.

17. Each driver employed by Newserv, including Evans, had a dedicated WhatsApp group chat set up by Newserv administrative staff. This was a platform via which drivers submitted electronically to Newserv daily sheets and other paperwork. Participants in the group chat for Evans (other than himself) were the administrative staff, the operations managers (Willits or Ashleigh Maher) and Bennett.

18. Drivers, including Evans, were also required to submit, periodically, hard copies of documents to Five Dock via pre-paid envelopes provided by Newserv.

19. On 29 October 2024, at Melbourne Market in Epping, Victoria, while handling watermelons arising out of or in the course of or his employment with Newserv, Evans suffered injuries to his right upper limb and consequential psychological injuries (the injuries).

20. By claim form dated 15 January 2024, Evans claimed weekly payments and medical and like expenses under the WIRCA in respect of the injuries (the claim).

21. As stated at the outset, by notice dated 12 February 2024, the claim was rejected in reliance on s.37(1) of the WIRCA[4].

22. Under s.37(1) of the WIRCA there is no entitlement to compensation under the Act other than in respect of employment that is connected with the state of Victoria.

23. Pursuant to s.37(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 under 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 under paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

24. Section 37(6) provides that 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.

25. Additionally, s37(7) provides that 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.

26. There was consensus broadly as to interpretation of the test contained in s.37(3) and the guiding principles derived from a series of cases. These cases have considered s.37(3) or its identical predecessor, s.80(3) in the Accident Compensation Act 1985 (Vic) (the ACA) or equivalent interstate provisions.

27. It is well-established that s.37(3) of the WIRCA operates as a cascading test for determining the state of connection. The operation of the test has been described this way:

... it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer it is necessary to move onto the next test.[5]

28. As for construction of 'usually' in s.37(3)(a) and (b), that has been interpreted as meaning 'customarily' 'frequently' or 'regularly' and does not involve a quantitative test. Indeed, sub-s.(3)(b) appears to contemplate that there might be two States in which the worker 'usually works' within the meaning of sub-s (a). If the comparison were quantitative, it is difficult to see how two States could each qualify.[6]

29. In Wadley, the Court had regard to the following factors in determining whether the worker 'usually' worked in more than one state:

• where he commenced and generally finished his work;

• where he delivered his completed paperwork to allow his remuneration to be calculated;

• where he applied for his job, had training and to have his truck serviced, maintained, and repaired, as well as to consult his manager in relation to his job[7].

30. In East, Carmody J observed that '[w]hilst the mathematical calculation of days worked is not determinative of where a worker usually works, it is a factor to take into account'.[8] His Honour expanded on the factors and had regard to the following:

• where he attended in the course of his work for the employer;

• where the contract of employment stated that the employment was based;

• where the worker worked in the year prior to the injury;

31. As for considerations to be weighed in determining where the worker was 'usually based' for his employment, in East, the Judge referred to the following factors:

• the location at which the worker routinely attends in the course of his employment to receive instruction, material and equipment;

• the location where the worker reports in relation to his employment; and

• the location from where the worker's wages are paid.[10]

32. I turn now to the evidence and submissions before arriving at my findings and determination of the state of connection.

Where did he commence, finish and carry out his duties?

33. Evans' evidence in relation to performance of the duties themselves was largely consistent with the accounts of Bennett and Willits and the documentary evidence.

34. He retained the truck allocated to him by Newserv continuously. In between shifts he parked or garaged the truck in Victoria at his own residence or his son's residence (also in Victoria).

35. Most weeks, he did a regular transport run for Newserv for its contractor client, LINPAC Packaging Australia Pty Ltd (the LINPAC run). The LINPAC run was from Victoria to Brisbane, Queensland. It began at the LINPAC depot in Truganina in Victoria where the trailers were loaded and closed up.

36. The 18-hour trip to Brisbane took about 30 hours 'all up' once the required breaks (per the National Law) were built into the journey. Although initially engaged to do 'changeovers' in NSW en-route to Brisbane, that did not eventuate, and he did the entire LINPAC run through to Brisbane.

37. He took breaks 'on the road'. He regularly slept in the truck cabin parked in a service station or roadhouse where he would eat his meals.

38. On the LINPAC run, given the longest part of the journey was within NSW, he generally took the required 7-hour break in NSW.

39. Under cross-examination, he agreed with the proposition that he spent the majority of his time on the road spent in NSW.

40. The LINPAC run concluded at a client depot in Brisbane.

41. As Newserv had no contracted 'return run' back to Victoria, Evans carried out local transport duties including freight pick-ups once the LINPAC run concluded in Brisbane. As directed by Newserv, that occurred in and around Brisbane and also within NSW on the return run to Victoria. This activity was directed by Newserv to ensure the return run was profitable for it.

42. Evans took his longer driving breaks at home in Victoria where possible; however, he took several 24-hour breaks in Queensland during the employment period. That might have been at times when he wanted to take a long break elsewhere (e.g. in Queensland) and Newserv could accommodate that. Also, if Newserv did not have a freight job ready for the return run, the 24-hour break might occur in Queensland to allow time for arrangements to be made for freight to be collected and loaded.

43. He completed paperwork related to the National Law record-keeping requirements such as the daily sheets on the road and as he went. He also had to complete other documentation daily paperwork for Newserv related to remuneration and carrying out of delivery contracts.

Where did he obtain instructions or directions regarding his job?Evans' evidence

44. He was aware his employment contract (in Schedule 1) had named both Bennett and Willits as 'manager(s).'

45. Pausing, the plaintiff was a generally cooperative witness although at times his evidence was vague or uncertain and at times inconsistent. For example, he gave He didn't have a WhatsApp group chat set up initially, yet the messages show this was created on 29 June 2023 and he started utilising it as a platform for submitting documents to Newserv from around 30 June 2023.

46. Another example was that he said he received specific instructions of jobs in writing and paperwork via that platform. Later in his evidence, he said instructions for jobs were always by text message. These contained information such as booking codes, addresses, pick-up timeframes, load sequencing and so on; whereas WhatsApp was for exchange of paperwork.

47. In examination in chief, he estimated he obtained work instructions 75 per cent of the time from Bennett. Whereas, under cross-examination, he conceded it was possible the majority of messages or instructions were from Willits and not Bennett.

48. He agreed text messages between himself and Willits and Ashleigh Maher were 'just business'. Whereas, the texts to and from Bennett contained details of 'leads' and contacts for Bennett to follow up from his own extensive network. He gave Bennett leads about customers to help him and because he was the salesperson. They also exchanged social chat such as sending family photos.

49. He was in phone contact with Bennett at least two to three times a week. If issues arose on the road or he needed clarification or verbal instructions, he generally rang Bennett. That was especially when Ashleigh Maher was in the operations role as he found her Irish accent difficult to understand.

50. There were in-person meetings including after the initial meeting. In cross-examination, Evans agreed that subsequent meetings with Bennett at the LINPAC depot were incidental and that he (Evans) knew the job and knew what to do.

51. Pausing here, there was plainly a warm and genuine mutual regard between Evans and Bennett. Yet Bennett answered questions directly, frankly and without any apparent bias. I formed a favourable impression of him as a credible witness. For example, he said he and Evans had 'gelled fairly well so they had a fair bit of contact', yet he disputed Evans's evidence that he (Bennett) had given instructions to Evans 75 per cent of the time.

52. When Willits was in the operations role, Willits provided instructions to Evans about 90-95 per cent of the time; he (Bennett) did so the rest of time. When Ashleigh Maher was in the operations role, she gave instructions to Evans about 70% of the time; otherwise he (Bennett) did. The reason he gave more instructions to Evans after Willits departed related to Evans having trouble understanding Ashleigh Maher's Irish accent on the phone.

53. Although he accepted he was a 'listed supervisor' as per a manager named in Schedule 1 in the employment contract, he disputed that meant overseeing Evans' work and disagreed with the proposition that he was the 'Melbourne foreman'.

54. Later in cross-examination he conceded he could be considered 'Melbourne supervisor' in the sense of 'boots on ground'. However, he qualified that, saying that was when uncommon issues arose such as when Evans complained about the bed in the new truck cabin.

55. He also emphasised in re-examination that it was a small business, so everyone did various things as required - that including helping out on the operation side, for example, due to Ashleigh Maher's inexperience relative to Willits.

56. As for face-to-face meetings with Evans, they had met up initially including at the LINPAC depot. They most commonly spoke on the phone rather than meeting up given Evans was 'in Brisbane for half the time'. He estimated under cross-examination they might have met up 5-6 times over the 16 weeks of the employment period.

57. As the operations manager, he spoke to drivers including Evans most days they were on the road. This included: to simply check in; to provide verbal directions followed up with text messages with additional job details; and also in the event of issues such as break-downs.

Where did Evans apply for the employment and or engage in any training?

58. Evans and Bennett both gave evidence that Evans contacted Bennett about potential employment with Newserv. They then met up in-person in Victoria (although recollections varied as to whether in Truganina or Port Melbourne).

59. Evans agreed under cross-examination that it was after a telephone discussion he had with Willits that he received an offer of employment with Newserv.

60. Willits gave evidence that, as national operations manager, it was mainly his decision as to whether to hire Evans. Accordingly, after Bennett met up with him initially, he interviewed him by telephone to assess his suitability for the heavy-duty transport role. Thereafter, he and the administration team at Five Dock were responsible for on-boarding Evans. As Evans was an experienced and capable long-distance truck driver, he knew what he was doing and required no real training.

Where or how did he deliver completed paperwork to allow remuneration to be calculated?

• He caught up with Bennett in person at least once a fortnight to hand over paperwork and did that, rather than posting the pre-paid envelopes the drivers were given by Newserv. However, under cross-examination he conceded that the handing of the paperwork to Bennett was not a regular thing; adding, 'nothing was real regular - you just did it when you caught up'.

• He took photographs of the work diary and sent that via WhatsApp daily as he did his completed daily worksheets based on which he was paid.

62. Bennett's evidence was that, of their half a dozen meetings, roughly only twice was he given paperwork by Evans to send onto Five Dock. He might have given him pre-paid envelopes when they met.

Where the contract of employment stated that the employment was based?

'The location of your work will be as outlined in Schedule 1, however the Employer may direct you to perform your duties at other locations either temporarily or permanently. You may be required to undertake travel as part of your duties.' Schedule 1 then set out the following:

64. Evans's evidence was that he had never attended Five Dock. He understood 'Home Office' to mean the office where bills and paperwork were kept. As for the phrase 'Or any other locations as directed', that referred to wherever he worked from or stayed.

65. Bennett said he had 'no idea' what 'Home Office' meant in this context.

66. Bennett gave evidence that when Evans was hired, Newserv was looking for a Melbourne-based driver because of the LINPAC run.

67. Willetts disputed that Evans was hired specifically to perform the LINPAC run, rather Newserv operated across the three eastern states and they were looking for interstate drivers. Nevertheless, he accepted Evans was suitable for the role given he was based in Victoria and the LINPAC run, which was a permanent contract, commenced in Victoria.

68. That was the evidence relevant to consideration of the test contained in s.37(3)(a).

69. Counsel for Evans submitted the evidence overwhelmingly supported the conclusion that Evans 'usually worked' in Victoria. In summary, that was based on the following:

• Delivery runs commenced and finished at his home address, his son's address or the LINPAC depot. He routinely attended the LINPAC depot in Victoria. That was evidenced from the summary table marked 'Annexure A' attached to Counsel's submissions, a summary to which I will return.

• He was hired and inducted via Victorian-based Bennett who was his direct manager (as reflected by Schedule 1). Bennett gave Evans the majority of the instructions; received his paperwork and had regular meetings to consult with him.

• Insofar as he worked in other states, that was, either, as a means to comply with National Law requirements regarding taking of breaks or was him performing other jobs so that his truck did not come back to Victoria 'empty'. This evidence did not displace the clear evidence regarding where he usually worked.

• Evans lived in Victoria and it was intended for him to perform local and interstate driving duties departing from Victoria. The fact that local jobs did not occur frequently did not displace the 'original intention' that he be based in Victoria.

70. Counsel for Newserv agreed, in submissions, that on the evidence Evans usually worked (undertaking driving duties and freight duties related to starting the LINPAC run) in Victoria. However, importantly, it was submitted further that the evidence also supported a finding that Evans usually worked in NSW and Queensland. In summary, that was based on the following:

• When performing driving duties and related freight duties on the LINPAC run, the majority of his time was spent in states other than Victoria (including driving, sleeping and eating).

• Instructions were provided by telephone from the operations manager based at Five Dock and from Bennett who was Victoria-based. He also received instructions and follow-up directions electronically from Five Dock.

• He did freight work locally in Queensland and NSW upon conclusion of the LINPAC run and in the course of the return trip.

71. That concludes an outline of submissions on the evidence with respect to s.37(3)(a).

72. I find that Evans customarily commenced and finished work in Victoria in beginning the LINPAC run in Truganina where the trailers were loaded and closed up and in returning to Victoria from interstate.

73. I find that he also sometimes concluded and re-commenced work at the Brisbane end of the LINPAC run if he took his long (24-hour break) there.

74. Pausing, with respect to the 'Annexure A' table attached to submissions of Counsel for Evans, the table sets out journeys over ten weeks (22 August 2023 to 27 October 2023) commencing and finishing in Victoria with the conclusion: 'Weeks in Victoria: 10/10'. However, additionally, the table sets out in each of the ten weeks journeys commencing and finishing in Brisbane or other locations in, Queensland.

75. I find that Evans customarily performed the following work duties:

• Regular truck-driving and related duties in Victoria in commencing the weekly LINPAC run from the LINPAC depot in Truganina;

• Regular truck-driving and related duties within NSW whilst carrying out the LINPAC run; and

• Regular truck-driving and related duties and local freight duties in Queensland upon conclusion of the LINPAC run;

• Regular truck-driving and related duties and local freight duties within NSW in the course of the return run back to Victoria;

• Regular taking of National Law mandated breaks customarily in states outside Victoria due to the distances he was direct to travel, an activity on the evidence of Evans and Willits that was integral to his duties; and

• Daily completion of documentation required by law and as directed by Newserv.

76. Next, I find that, wherever Evans was on the road including in NSW and in Brisbane he regularly and commonly received directions and instructions verbally (by phone) and electronically (by text or WhatsApp).

77. I find that, on the evidence of Bennett and Willits, and as conceded by Evans, instructions and directions came customarily from the operations managers (whether Willits or Ashleigh Maher) and staff at Five Dock. They also came from Bennett in Victoria. My finding is supported by the very large volume of text messages including between himself and variously, Bennett, Ashleigh Maher and Willits regarding day-to-day employment activities.

78. Whilst the construction of 'usually' does not involve a quantitative test, the evidence was compelling that, instructions and directions customarily emanated from Five Dock (between 70 and 95 per cent of the time according to whether Willits or Ashleigh Maher was in the operations role).

79. Pausing, it is true, as submitted by Counsel for Evans, that Evans never met Willits and also that Willits was in the operations role for only weeks before he left. However, given the whole of the evidence, I am not persuaded that supports a contention that Bennett was his manager in the sense of giving him the majority of his instructions. That is contrary to my findings on the evidence.

80. Willits and Maher both gave evidence that it was substantially the role of the operations manager based at Five Dock to give instructions to Newserv's drivers on the road including Evans; although Bennett would step in if a person was away or as required. Willits gave unchallenged evidence that he did a hand over to Ashleigh Maher regarding the role.

81. As for recruitment, I find that consisted of a combination of an in-person meeting with Bennett in Victoria and a telephone call with Willits from Five Dock. I find the ultimate hiring decision was that of Willits on the unchallenged evidence of both Willits and Bennett.

82. Whilst he undertook no formal training or induction for Newserv given his decades of experience, I find he was 'onboarded' partially by Bennett (in Victoria) who showed him around at Truganina and partially by the administrative staff at the Five Dock address.

83. I find paperwork (including screenshots of a daily diary and worksheets for remuneration) were completed by Evans on the road and delivered electronically and by mail to Five Dock for processing.

84. I find there were times when Bennett was a conduit and he in turn sent the envelopes to Five Dock on Evans's behalf. However, I also find the meetings with Bennett were incidental and not regular and were not for this specific purpose. Indeed Evans conceded in cross-examination any subsequent meetings with Bennett at LINPAC were incidental, saying 'nothing was regular'.

85. The contract nominated locations as Five Dock well as any other locations he was directed to perform duties (which I have found was, regularly, in Victoria, in NSW and in Queensland).

86. As for the 'home office' reference, that does not advance matters as there was simply no evidence of a home office rather, as stated, administrative duties were performed by Evans on the road and submitted by him on the road.

87. Finally, the weight of the evidence was that the parties' meant for Evans to continue to live in Victoria and to work across Victoria, NSW and Queensland; and that he was hired to perform work including but not specifically the LINPAC run. He also, necessarily, spent the majority of time in NSW both driving and taking the mandated breaks and locally within each of NSW and Queensland as directed.

88. Pausing here, I must reject as misconceived the submission of Counsel for Evans that his work in other states 'did not displace' the clear evidence that he usually worked in Victoria. It was contended that was because the work in the other states (taking of breaks) was, either a means of complying with the National Law, or required so the truck did not come back empty.

89. Such a characterisation of the evidence does not accord with established principles in the case law as to how the 'usually works' test is to operate. To again reiterate, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer it is necessary to move onto the next test.[11]

90. Further to my findings of fact, it is indisputable that Evans did usually work in Victoria. It also indisputable that he did not usually work only in Victoria.

91. I conclude that Evans usually worked in Victoria and also usually worked in NSW and in Queensland.

92. Accordingly, there is no clear answer to the question posed by s.37(3)(a). It is therefore necessary to move onto the next test.

What did the contract of employment state with respect to location of the work?

93. As already stated, under schedule 1 of the contract the designated location(s) of employment, in addition to Five Dock and 'Home office", included 'Or any other locations as directed'.

95. On daily sheets completed by Evans from 28 June 2023 to 28 October 2023 regarding 'Time Zone', the nominated state was 'VIC'.

96. In the national work diary kept by Evans, on the page for 'Base, record location and accreditation number' (at p. 31 of the diary), there was a column for 'Address of base' and a column for 'Address where records are kept'. Each column was completed in Evans's handwriting on 22 August 2023. Under Address of base, the address at Five Dock was scored out and Evans's home address was filled out. In the column 'Address where records are kept', the Five Dock address was filled out.

97. Evans gave evidence about amending the 'Address of base' entry at the request or direction of police (having been being pulled over for a routine check). Police had indicated that Five Dock was not an appropriate 'Address of base' given he never went there in the truck. Instead, given he lived in Victoria, it was recommended by police he fill out his residential address as the 'Address of base'. Evans had then checked this with Bennett who confirmed he should adopt that course. Bennett did not dispute this occurred; although hr could not recall of the conversation.

Where did he routinely attend in the course of his employment to receive instruction, material and equipment and what locations did he report to in relation to his employment?

98. I refer to and repeat the evidence and my findings of fact regarding these questions as set out previously.

99. In essence, as stated, Evans had never been to Five Dock and did not routinely attend any Newserv depot or location to receive instructions (Newserv not having any premises other than Five Dock). Rather, as I found, instructions and directions were received verbally by phone and electronically wherever he was including when 'on the road'.

100. As for being allocated and picking up trucks, the undisputed evidence of Evans was that he was allocated three different trucks by Newserv. Each of the three trucks was picked up by him in a different state, respectively, Truganina (Victoria), NSW and Brisbane.

101. There was no evidence of any direction or requirement to pick up material and equipment for Newserv other than the truck itself and the handling and carrying of freight.

From what location were the worker's wages are paid?

102. Payroll was processed at Five Dock which address appeared on the top right-hand corner of Evans's payslips.

103. As for any pay issues, Bennett's evidence was that he was not the first point of contact on pay issues, rather that was a payroll clerk (Jilly) at Five Deck. Only if the issue was not resolved did he (Bennett) take it upon himself to follow things up for Evans.

104. A further remuneration issue related to payment of public holidays in respect of which entitlement the contract stated (relevantly):

13.1 The following days are public holidays: ... any other gazetted public holidays in the relevant State or Territory in which you are employed (emphasis added).

105. Evans gave evidence that, after stopping work because of the injuries, he realised he was not paid for a gazetted Queensland public holiday which fell whist he was working in Brisbane. When he followed this up, Newserv payroll staff arranged payment for a Victorian-gazetted public holidays (the September grand final eve holiday) apparently on the basis he was a Victorian-based driver.

106. That was the further evidence relevant to consideration of the test contained in s.37(3)(b).

107. I turn now to submissions on the 'usually based' test.

108. It was submitted by Counsel for Evans that the weight of evidence supported the conclusion he was 'usually based' in Victoria under the s.37(3)(b) test.

109. Although the contract (at schedule 1) designated both Bennett and Willits as manager(s), on the evidence, Evans' direct reporting line, for all practical purposes, was to Bennett. Whereas, he never met Willits.

110. Next, he was paid by Newserv for a Victorian public holiday and under the contract the relevant clause (cl.13) stated the entitlement was for the state or territory 'in which you were employed'. It should be inferred also from that evidence that where cl.16 directed there was to be compliance with work health and safety (WHS) legislation 'relevant to your State or Territory' the employer meant that to be Victoria also.

111. The evidence, it was submitted, was that - other than starting his working week in the truck from his or his son's home - the LINPAC depot (in Victoria) was the only place he routinely attended to collect materials and receive direction.

112. Further, it was said the factor regarding wages being paid out of Five Dock had limited evidentiary significance by contrast to the weight of evidence overall pointing to Evans being usually based in Victoria.

It is difficult to reconcile how an individual based in Victoria, recruited primarily for a Victorian contract, interviewed in Victoria and paid Victorian public holiday rates would be considered anything but a Victorian based worker and ergo, the employment being sufficiently connected to the state of Victoria.

114. On the other hand, Counsel for Newserv submitted the weight of the evidence was that Evans was not only usually based in Victoria; but also usually based in NSW, if not also Queensland. In other words, Evans was not usually based only in Victoria.

115. It was submitted Evans made no routine attendances for the purposes of receiving Newserv's directions or to collect materials or equipment. Whilst he did routinely attend the LINPAC depot in Victoria, that was to collect freight from the premises of a third party contractor.

116. To the extent that Evans and Bennett had in-person catch ups, beyond the first meeting, these occurred only incidentally at the LINPAC depot or elsewhere. Any in person meetings were not 'routine' meetings to receive directions; but rather as general catch ups, or discussions often about leads for Bennett.

117. Any subjective beliefs of the plaintiff as to where his job was 'usually based' were simply not relevant.

118. The evidence as to payment of a Victorian public holiday entitlement simply did advance matters for Evans with respect to the test under s.37(3)(b).

119. Finally, it was submitted that the truck itself was Evans's base for the performance of his duties.

120. I turn first to the contract of employment which (as stated previously) designated in Schedule 1 'Location(s)', interchangeably, as Five Dock, to 'Home Office' or 'any other locations as directed'.

121. I refer to and repeat my previous findings of fact, in particular, that:

• Evans was directed to perform truck-driving duties customarily and regularly across all three eastern states; and

• Evans completed administration requirements of his work in the truck and wherever he was on the road and there simply was no home office as such.

122. As for reliance by Evans on the contract and the evidence regarding payment of a Victorian public holiday, I am the view that evidence does not assist one way or another in the analysis pursuant to section 37(3)(b).

123. It is true the contract's public holiday clause referred to the entitlement being connected to the state in which 'you were employed'. The evidence was when he realised that had been overlooked, he followed up Newserv after stopping work. Evans' own evidence was that he had expected to be paid for a Queensland holiday which had fallen whilst he was working in Brisbane. Payment occurred retrospectively after he ceased work for a Victorian holiday where he lived.

124. I find that at least under the contract he was based wherever he was directed by Newserv to be on the road.

125. I turn now to evaluate the documentary evidence relating to 'address of base' as being in Victoria, specifically his residential address (and which at paragraph 6 of the statement of claim) the plaintiff pleaded was to be his 'home office'.

126. First, I reiterate my finding there was no home office.

127. Second, I find that the documentary evidence as to 'address of base' is of little weight in the evaluation of the evidence overall with respect to the 'usually based' test.

128. Again, for completeness, the evidence was that the reference to 'address of base' came from the National Driver Work Diary which was intended for drivers of fatigue-regulated heavy vehicles. In cross-examination, Evans agreed that 'Address of base' was the address where the truck was garaged. He also accepted that for National Law purposes the definition of garage address was either the depot or, if no depot, then the garage address defaulted to be the driver's home address; that is, the place from where the driver commences driving and measures mileage and time on the road.

129. I infer it was on that basis and given he never went to Five Dock that police told him to enter his home address for National Law purposes. In the same way, I infer that on the daily sheets the section for 'Time Zone' nominated 'VIC' as the home state for measuring times on the road and so on.

130. Moreover, I find that use of the term 'base' in the context of this document is necessarily different from its use in s.37(3)(b); the latter acknowledges that a worker might be usually based in multiple states, whereas the 'address of base' for the purposes of the Diary presumes a single base at any one time.

131. Next, I find on the evidence that, other than to pick up a client's freight at the premises of a third party client (LINPAC), there were no routine attendances to receive instructions or materials. There were also no routine attendances to 'report in' as this occurred whilst he was on the road. In that regard, I refer to and repeat my previous findings of fact.

132. I therefore must reject, as contrary to the evidence, the submission for Evans that to the extent there was routine attendance at the LINPAC depot, that a persuasive factor pointing to Evans being usually based in Victoria.

133. Next, with respect to the question of to whom Evans reported, I repeat my findings of fact that instructions and directions customarily came from Five Dock and sometimes from Bennett.

134. For completeness, given the emphasis by Counsel for the plaintiff on Evans and Bennett's relationship and frequency of contact between them, I make these further findings regarding the interactions between the two men.

135. Certainly, as I have found, there were interactions between them that related to operational aspects of his duties. However, the evidence of both was that a frequent basis of their interactions was Evans giving Bennett (as sales manager) leads to help out Bennett in obtaining new business for Newserv. Also, I find their interactions arose sometimes as social check-ins due to their friendly regard for one another. In that regard, I refer, for example, to the following exchange in re-examination of Evans. When asked 'why ring Jason?", he replied 'I knew Jason - we spoke a lot - I automatically rang him'.

136. Next, I find any exchange of envelopes or paperwork between Evans and Bennett was not 'routine', rather it was incidental and a matter of convenience. Furthermore, as Evans conceded he was aware, the paperwork was destined for the head office in Five Dock for processing. Bennett also emphasised in re-examination that it was a small business so everyone did various things as required.

137. I find on the whole of the evidence, in particular Bennett's evidence, their discussions were customarily on the phone rather than in-person which was because Evans was absent from Victoria. As Bennett said, that was because Evans was 'in Brisbane for half the time'. When pressed under cross-examination he considered they might have met up 5-6 times over the 16 weeks.

138. On the whole of the evidence, I conclude that as circumstances required he sometimes reported into Bennett. I also conclude that he frequently and customarily reported into the operations manager and administration staff at Five Dock.

139. As stated, there was no dispute that payroll was processed from Five Dock. I will return to the significance or otherwise of this factor as per submissions by Counsel for Evans later in these reasons.

140. Although the parties had contrary views of the evidence and the 'usually works' test under s37(3)(a), the real controversy in the case was focused on the 'usually based' test under s.37(3)(b).

141. Both Counsel in submissions made references to the factual scenarios of the leading cases involving interstate or cross-state truck-drivers.

142. Of course, as Counsel for Newserv observed rightly, there are limitations in utilising factual findings in other decided cases to determine the outcome in this case.

143. Inevitably, even where factual scenarios of decided cases appear broadly similar, each case inevitably has its own matrix of facts and circumstances.

144. Nevertheless, having regard to both Counsel's submissions, it is at least somewhat instructive to consider briefly the analysis of the factual scenarios in cases to which submissions referred.

145. In East, for example, the contract nominated 'base of employment' and location as Victoria. The Court found the plaintiff who lived in NSW and did the majority of his duties in NSW, was usually based in the one state of Victoria. That was because of his routine attendance and frequent operational interactions with the Victorian office, a factor in contrast to the facts here.

146. In Wadley, the plaintiff (like Evans) was a Victorian-resident interstate truck driver who spent long hours driving the truck. Also, like Evans, he used the truck as eating and sleeping quarters and office.

147. However, there, unlike here, the employer operated a physical base or depot in both Victoria and NSW and the plaintiff attended both sites for different reasons and dealings with personnel at both.

148. With respect to 'usually based', the Court found that he was usually based in NSW and usually based in Victoria 'in the sense that his truck provided him with the mobile facilities required for the performance of his work, given its particular nature'.[12]

149. In Hall, again like Evans, the driver, a Victorian resident, retained and parked the truck in Victoria where he resided. The employer directed the driver to transport grain from NSW to within NSW, Victoria and other states. He attended the employer's NSW depot daily to pick up tools. He reported to a Victorian-based supervisor and staff at the Victorian office.

150. With respect to 'usually based', Magistrate Wright noted the Judge's observations in Wadley that it could be said that his employment was usually based in Victoria in the sense that ' ... his truck provided him with the mobile facilities required for the performance of his work, given its particular nature'.[13] Magistrate Wright referred to the weight given by Courts to evidence of 'routine attendance' and then said this:

Importantly in this case, as opposed to the factual situations in East and Wadley, there is no evidence that the defendant had any base, depot or premises in Victoria where Mr Hall would attend save for the circumstances set out in the previous paragraph. However, the truck was a base for the performance of his duties in Victoria.[14]

151. In the current case, where I have also found there was no routine attendance by Evans at any premises of the employer (the only premises being Five Dock), the conclusion is compelling that the truck itself was his base for the performance of his duties in that it gave him the mobile facilities required for the performance of his work, given its particular nature.

152. Counsel for Evans submitted the present case differed importantly to Hall in which the plaintiff routinely attended the employer's depot at Griffith, NSW. Whereas it was said here Five Dock was a location that Evans never attended, it being Newserv's 'nominal Sydney address' which was 'purely administrative, having 'no real connection' to the plaintiff's duties. Also, his reporting was 'in large part' to Bennett in in Victoria.

153. Pausing, I have already rejected as contrary to the evidence the submission of Counsel for Evans that his reporting into the employer was 'in large part' to Victorian-based Bennett'. In that regard, I refer and repeat my previous findings.

154. I now turn to the submission by Counsel for Evans regarding there being 'no real connection' with Five Dock other than the fact of Newserv's payroll and operations functions being located there.

155. In support for that submission, Counsel relied on Ferguson v WorkCover Queensland[15] in which Applegarth J adopted the factors in East and also observed that the place in which the employer is based 'may have little to do' with the place the worker is based for the purposes of that employment.

156. Yet, having regard to my factual findings as previously stated, I must reject, as contrary to the totality of the evidence, the submission that Five Dock was 'purely administrative', having 'no real connection' to the Plaintiff's duties.

157. Firstly, I reiterate my previous findings that Evans' interactions with staff at Five Dock occurred at least daily or even more more frequently comprising: receiving of verbal and electronic instructions and directions from operations and administration staff; and submitting of paperwork electronically and in 'hard copy' to Five Dock. These instructions and interactions were intrinsically part of the performance of his duties. I must therefore reject the submission there was 'no real connection' to Five Dock. The contrary was the case with the connection being frequent and integral to the duties.

158. Secondly, the Judge in Ferguson also observed that the location the worker routinely attends during the term of employment to receive directions or collect materials, or equipment may be highly relevant[16]. Again, to reiterate in this case, there were no such routine attendances at any premises of Newserv to receive directions or materials or equipment.

159. Having set out these observations, the weight of evidence points ineluctably to the conclusion that Evans's truck was the base for the performance of his duties, which included not just driving, but also sleeping, occasionally eating, and the completion of his paperwork. It was also the place where he received instructions and directions via phone calls or messages whilst driving. Again, the conclusion is compelling that the truck itself was his base for the performance of his duties in that it gave him the mobile facilities required for the performance of his work.

160. Counsel for Newserv submitted correctly that Evans's own subjective beliefs as to where his job was 'based' were not determinative of the 'usually based' test as Magistrate Wright noted in Hall.

161. As in Hall, I am satisfied that Evans understood that his place of residence was to continue to be based in Victoria, rather than the employment itself being based in Victoria for the purposes of s.37(3)(b).

162. Section 37(6) provides that in deciding whether a worker usually works in a State, regard must be had to the intentions of the worker and employer. On an objective evaluation of the whole of the evidence, I conclude that Evans and Newserv both operated on the basis that he necessarily needed to perform regularly work duties not only within Victoria but also:

• Within NSW whilst carrying out the LINPAC run; an

At a glance

Court

Decision date

Source

Judgment (223 paragraphs)

Parties

Legislation Cited (2)