1. The second respondent asserts that state of connection is in issue. If the first respondent is found to be liable, the second respondent seeks an indemnity order under s 145 (6) of the 1987 Act. It also raises that previous compensation was paid for hearing loss and subsequently hearing aids have been paid. Counsel submitted that the s 78 issued by the third respondent has not raised an issue about "last noisy employer" and argues that it cannot be raised now.
2. The third respondent states it adopts the applicant's case against the first respondent. It concedes, that if there is a finding that the first respondent is not liable because of s 9AA of the 1987 Act, then the third respondent is the last noisy employer in New South Wales. In that eventuality the third respondent agrees that the lump sum claim should be referred to a Medical Assessor for the permanent impairment to be assessed.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
2. The matter proceeded in arbitration hearing. The applicant was represented by

Mr McManamey, counsel, instructed by Ms Faura, solicitor. The first respondent was represented by Mr Macken, solicitor, instructed by Mr Paul Butko. The second respondent was represented by Andrew Combe, counsel, instructed by Ms Davis, solicitor, and Ms Barnsley from the WCNI. The third respondent was represented by Mr Anderson, solicitor, instructed by Ms Bazley from the insurer, Allianz Australia Workers Compensation Limited.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;

(b) Reply filed by the second respondent and attached documents;

(c) Reply filed by the third respondent and attached documents;

(d) Application to Admit Late Documents dated 2 September 2024 filed by the first respondent attaching the first respondent's Reply;

(e) Application to Lodge Additional Documents dated 9 December 2024 filed by the applicant;

(f) Application to Lodge Additional Documents dated 9 January 2025 filed by the first respondent;

(g) Application to Lodge Additional Documents dated 16 January 2025 filed by the third respondent, and

(h) Application to Lodge Additional Documents dated 21 January 2025 filed by the applicant.

1. There was no oral evidence. Each party's legal representative made oral submissions which were sound recorded and a copy of the recording is available to the parties. As the submissions have been recorded I do not propose to recite them verbatim in these reasons. The main thrust of each party's submissions are referred to below where relevant.

1. Both employers concede they are noisy employers.
2. It is convenient to deal firstly with the issue as to the state of connection.

1. Section 9AA of the 1987 Act provides the relevant legislative provisions relating to this issue. It states:

"(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.

(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.

(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.

'State' includes Territory and, in a geographical sense, a State's or Territory's relevant adjacent area as described in Schedule 1."

1. The relevant evidence about Mr Gray's employment is contained in the following documents:

(a) Mr Gray's statements dated 29 November 2022, 21 August 2023,

6 December 2024 and 20 January 2025;

(b) ASIC search of JC Butko Engineering Pty Ltd;

(c) history in report of Dr Paul Fagan dated 7 May 2021;

(d) history in report of Dr Raj dated 8 February 2021, and

(e) statement of Paul Butko dated 27 November 2024.

1. In his statement dated 29 November 2022 Mr Gray states that he was employed by JC Butko Engineering in Victoria as a Site Supervisor from 26 February 2012 until 31 January 2019. He says he "was exposed to noise from moving equipment, cranes based in Mulwala ammunition factory, grinders and welding equipment".[1] Mulwala is in New South Wales.

Mr Gray states that prior to this employment he was employed by Duncan's Holdings Ltd t/as Boral Timber in New South Wales as a maintenance fitter and he describes the noise he was exposed to there. He also sets out his earlier noisy employment and at [17] says he made a previous claim for hearing loss in 2008. Mr Gray corrected this date to 2010 in his third statement. The complying agreement confirms this claim was based on report of Dr Bal Krishan dated 2 July 2010 relating to employment with DTD Engineering Pty Ltd of Thurgoona, New South Wales.[2] The sum of $9,625 was paid to Mr Gray for 7% WPI. 2. In his second statement dated 21 August 2023 he says prior to starting his employment with JC Butko Engineering Pty Ltd he was advised that he would be assigned to the Mulwala ammunition factory on an everyday basis. He says he was not provided with a written contract or asked to sign a contract. He says he attended their head office in Wodonga, Victoria for an induction. Mr Gray advises he lived in Albury in New South Wales. At [9] he states his duties were not limited to supervising workers on site. He says if they needed supplies he would travel from Albury to Wodonga and then go to the Mulwala factory. He adds if construction materials were not required he would just travel from his home straight to the Mulwala factory. He says he worked five days per week, 10 hours per day for seven years. 3. In his third statement Mr Gray says he was offered the job with JC Butko Engineering Pty Ltd through word of mouth. He says he was asked to attend an interview and induction at the head office in Wodonga and after that he commenced working. He adds:

"b) I attended the head office in Wodonga to pick up materials and consumables, such as nuts and bolts, before driving to Mulwala ammunition factory, where I was the site supervisor.

1. I did not have my own office at the head office in Wodonga. It would have taken me no more than half an hour to pick up or drop off items in the morning and afternoon.

d) My company vehicle was a Ford dual cab ute and later a Mitsubishi Triton.

e) The drive from the head office to the Mulwala ammunition factory took about one hour.

f) I returned to the head office in the afternoon, so this was another 1-hour drive. I refer to my second statement dated 21 August 2023, paragraph 9. When I said my travel time was approximately two hours, this included both trips (morning and afternoon).

g) On some occasions, if I did not have to pick up any materials, I would drive straight from my home to the Mulwala ammunition factory. This occurred approximately once a week on average.

h) I agree that I drove back to the head office most afternoons to drop off equipment to be repaired, purchase orders, and paperwork. Occasionally, I drove straight home rather than go to the head office. This occurred approximately once a week on average, usually on a Friday."[3]

1. Mr Gray also states he had a site office at the Mulwala factory close to the factory floor where he spent about three hours per day but most of his time was spent on the factory floor, which was noisy. He said he generally worked 10 hours per day with the two hours travel paid on top.
2. In his fourth statement dated 20 January 2025 Mr Gray says his wages were paid into his bank account which was opened and operated in New South Wales. He gives details of his account which I have refrained from reciting for privacy reasons. He says he has never opened or operated a bank account in Victoria.[5]
3. The ASIC search of JC Butko Engineering Pty Ltd shows that the registered office is 491 Smollett St Albury NSW and the principal place of business is 7 Moloney Drive Wodonga, Victoria.[6]
4. In the report of Dr Paul Fagan with the date of report stated to be 7 May 2021 from a consultation on 20 April 2021 Mr Gray told the doctor that he had always worked within New South Wales.[7] This history is repeated in his report dated 6 August 2021.[8]
5. In the report of Dr Raj dated 8 February 2021 the doctor states that Mr Gray was slightly confused with the dates of his employers and he used the solicitor's letter and previous medical report as a guide for the dates. Dr Raj states, "Mr Gray has been a fitter from 1969 to 2012 in NSW and 2019 in Victoria."[9] After referring to the job with Duncan's Holdings,

Dr Raj states, "He then moved to Victoria and worked as a site supervisor for Butko Engineering for seven years." Based on this history Dr Raj found that Mr Gray's last noisy employer in NSW was Duncan's Holdings. 6. Mr Paul Butko made a statement dated 27 November 2024.[10] He says he is the commercial manager of the first respondent and is familiar with the operation of the business. He states that the agreement to employ Mr Gray was entered into in the office of the company in Wodonga. He says all the employment paperwork was completed and submitted to the payroll department of the company in Victoria. Mr Butko confirms that Mr Gray was sent to work as the site supervisor at the Mulwala Ammunition Factory which is in New South Wales. He says that Mr Gray almost every day started and finished from the company's office in Victoria. He said this was primarily for the purpose of collecting and dropping off equipment, materials, consumables, purchase orders and/or other paperwork. Mr Butko says Mr Gray travelled to Mulwala in a company car which was registered in Victoria. 7. Mr Butko says all employees of the company were employed in Victoria and the company had a comprehensive workers compensation policy in Victoria. He said the wages declaration in relation to that policy included those paid to Mr Gray. He says the belief he held was that no wages at all would be paid in New South Wales. He says at all times the company considered he was a Victorian employee. 8. Mr McManamey submitted that the factual matters related by Mr Gray are consistent with what Mr Butko had to say. He submits that it is fair to say that the first question in s 9AA is not answered by where a worker spends the most of his time. He says if it was the test,

Mr Gray spent the most of his time in New South Wales. He submits the question is, where does he usually work? Mr McManamey submits that the applicant's job was as a site supervisor at the Mulwala ammunition factory. He says this is where he usually performs his work, going there every day. He adds that he may go to the office in Victoria but not every day. He submits the trips to Victoria are incidental to his work. 9. It was submitted that if the Commission cannot obtain an answer under the first question, then the second question asks, where is he usually based? It was submitted that this should be found to be in New South Wales because his site office is in Mulwala, but if not the answer cannot be Victoria either, it just produces no answer. 10. The third test is where is the employer's principal place of business in Australia.

Mr McManamey submits this cannot be the principal place as set out in the ASIC register citing Martin v RJ Hibbens Pty Ltd.[11] He says Mr Butko has not given any information about other parts of the business in his statements. 11. Then the fourth test gives the answer, where the injury occurs and this is in New South Wales as that is where injury occurs, where Mr Gray was exposed to industrial noise. 12. Mr Macken submitted for the first respondent that the state of connection is Victoria. He says as Mr Gray worked both in New South Wales and Victoria no one state is identified under the first limb of s 9AA (3)(a). Moving to the second limb in sub-section (3)(b), where a worker is usually based, Mr Macken submits this can only be Victoria because the employer does not have a base in New South Wales as the arms factory in Mulwala is not owned by the first respondent. Mr Macken also relies on Martin at [60] and the evidence of Mr Butko. He submitted that Mr Gray told Dr Raj he was employed in Victoria. 13. Mr Anderson adopted Mr McManamey's submission that the state of connection is New South Wales. 14. Mr McManamey in reply says Mr Gray was not working at Mulwala on a short term basis. The evidence is that Mr Gray worked there as a site supervisor for the first respondent for about seven years. He also submits there is no evidence in Mr Butko's statement about the ownership of the Mulwala Munitions factory. He was also critical about Mr Macken's submission that the first respondent has no business in New South Wales, as

Mr McManamey submits there is no evidence about this. He also submitted that there is evidence about how much Mr Gray was being paid as his tax returns are in the documents showing an income about $69,000 a year. 15. Mr Coombe relies on Mr McManamey's submission about s 9AA. 16. Counsel made submissions about the other issues in the matter but it makes sense for me to determine the position with s 9AA first. As Mr McManamey and Mr Macken both relied on Martin I have considered it closely below. 17. In the matter of Martin the applicant sustained injury in 2006 when she stepped into a hole when spraying weeds on a property in New South Wales. The insurer disputed liability for her lump sum compensation claim on the basis that she lived in Queensland and performed the majority of her work in Queensland. The insurer argued the state of connection was Queensland. The arbitrator found at first instance that the applicant was not entitled to receive compensation because her employment was "not connected" with New South Wales. This decision was overturned on appeal by Roche DP. Clearly cases such as Martin and

Mr Gray's case are fact sensitive. 18. It appears from [35] of the reasons that the arbitrator calculated a percentage of time that

Ms Martin worked in each state. This approach was found to be in error and was disavowed by Mr McManamey and Mr Macken. Roche DP considered many cases from other jurisdictions that have similar provisions and observed at [39] that the second reading speech stated that the purpose of the introduction of s 9AA was to "eliminate the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction" and at [40] to remove the need for employers to have two workers compensation policies for "employees working temporarily for up to six months" in another state. 19. At [60] Roche DP set out the principles applicable in the determination of cases under s 9AA of the 1987 Act as follows:

"(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]). 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]), 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."

1. In this matter Mr McManamey and Mr Macken both submitted that the "usually works" test in s 9AA(3)(a) does not provide an answer as to the state of connection because Mr Gray usually worked in both New South Wales and Victoria. I accept this is correct.
2. In relation to the "usually based" test Roche DP considered the decision by Commissioner Herron of the District Court of Western Australia in Tamboritha Consultants Pty Ltd v Knight.[12] At [54] of Martin Roche DP set out matters to be considered under this test as:

"• the work location specified in a worker's contract of employment;

• the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment in relation to the work;
• the location the worker reports to in relation to the work, and
• the location from which the worker's wages are paid."

1. In Mr Gray's case there is no written contract and insufficient details of the oral contract to ascertain the work location specified. Yet I do accept the evidence from Mr Butko which I find is supported by Mr Gray that the employment agreement was entered into in Wodonga. However, I find based on Mr Butko's statement and that of Mr Gray, that he routinely attended Wodonga to receive work orders and collect some equipment. The evidence is he attended the Wodonga office most days in the morning and night. Mr McManamey submits that one could envisage that the materials and equipment would be at the Mulwala factory as it is a munitions factory. However, there is no evidence about this. There is actually no evidence as to what JC Butko Engineering Pty Ltd did at the munitions factory. I cannot assume that because Mr Gray was a site supervisor that he was supervising the making of munitions or indeed what work he was supervising. Interestingly on his tax returns he records his occupation as a fitter and turner.[13] Mr Gray states that he attended the Wodonga office if they needed "supplies", "construction materials" and later in his statement he gives the example of "nuts and bolts". He said he would "drop off equipment if it needed to be repaired". He dropped off purchase orders and paperwork at Wodonga. The location Mr Gray reported to about the work is difficult to determine as he was the site supervisor at Mulwala and the evidence does not disclose if he reported to anyone there or as site supervisor he reported to those at Wodonga. The location from which his wages were paid, I find was Wodonga. I accept Mr Butko's evidence in that regard. I find it is not determinative that |

Mr Gray did not have a bank account in Victoria. 2. Therefore, some of these facts do support the "usually based" test may be Wodonga. However, the evidence is not clear about all the factors that may be relevant. 3. If s 9AA (3) (b) does not provide the answer I need to consider sub-section 3(c), the employer's principal place of business. Roche DP found this will not necessarily be the same as its principal place of business registered with ASIC. However, at [56] in Martin Roche DP refers to Knight and says that a business may not be a corporation and therefore not registered with ASIC. Yet JC Butko Engineering Pty Ltd is registered with ASIC, and its records show the registered office is in Albury but the principal place of business is Wodonga. Roche DP then quotes [66] of Knight and states " 'principal place of business' meant 'chief, most important or main place of business from were the employer conducts most or the chief part of its business". While I agree that the evidence could have been more detailed about the operations of JC Butko Engineering Pty Ltd, I find the principal place of business was, more likely than not on the balance of probabilities, Wodonga. I find it is significant that Mr Gray dropped off orders and paperwork to the office in Wodonga. He drove a vehicle owned by the company, registered in Victoria. He was paid from the Wodonga office. The fact that Mr Gray started and finished work at the Wodonga office also provides evidence that it was the principal place of business, notwithstanding he says sometimes he did not go to the office such as on a Friday afternoon. I reject the submission that because he had a site office at Mulwala that was the principal place of business. I am persuaded that the chief part of the business of JC Butko Engineering Pty Ltd was conducted from Wodonga. Furthermore, just because it was stated in Knight and Martin that "an employer's principal place of business was not necessarily the same as its principal place of business registered with ASIC" (my emphasis) does not mean that this can be ignored. The words "not necessarily" suggests in some cases the ASIC record can be a relevant fact. I find it is in this case because the ASIC record makes a distinction between the registered office and the principal place of business, with the later being Wodonga. I find this record is consistent with the other facts I have referred to immediately above that this was the principal place of business. 4. In summary, I find that Mr Gray's employment is not connected to the state of New South Wales and therefore I make an award for the first and second respondents. 5. The third respondent fairly conceded that if this was the outcome the lump sum claim made against it with a deemed date of injury of 20 April 2012 (deemed) should be remitted to the President for referral to a Medical Assessor to assess the permanent impairment. I have made the relevant orders on the Certificate. 6. Because of my findings it is not necessary for me to determine the other issues that were raised in this case.

[2] First respondent's ALAD 9 January 2025 p 33.

[10] First respondent's ALAD 9 January 2025 p 1.

[11] [2010] NSWWCCPD 83, Martin.

[12] [2008] WADC 78, Knight.