36BEmployment connection test

36B Employment connection test (1) Compensation under this Act is only payable if the ACT is the Territory or State of connection. (2) The fact that a worker is outside the ACT when injured does not prevent compensation being payable under this Act if the ACT is the Territory or State of connection. (3) A worker’s employment is connected with— (a) the Territory or State where the worker usually works in the employment; or (b) if no Territory or State, or no single Territory or State, is identified by paragraph (a)—the Territory or State where the worker is usually based for the purposes of the employment; or (c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b)—the Territory or State where the employer’s principal place of business in Australia is located. (4) For a worker working on a ship, if no Territory or State, or no single Territory or State, is identified by subsection (3), the worker’s employment is, while working on the ship, connected with— (a) the Territory or State where the ship is registered; or (b) if the ship is registered in more than 1 Territory or State—the Territory or State where the ship most recently became registered. (5) If no Territory or State is identified for a worker by subsection (3) or (4), the worker’s employment is connected with the ACT if— (a) the worker is in the ACT when injured; and (b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia. (6) In deciding whether a worker usually works in a Territory or State— (a) regard must be had to the following: (i) the worker’s work history with the employer over the previous 12 months; (ii) the worker’s proposed future working arrangements; (iii) the intentions of the worker and employer; (iv) any period during which the worker worked in a Territory or State (a relevant place) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place; but (b) regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months. Example—worker usually works in a single jurisdiction Emma is employed as an electrical trades assistant with a NSW-based employer. Emma performs all of her employment duties on worksites in the ACT, taking her own vehicle to work and providing her own tools and equipment. Emma does not attend her employer’s premises in NSW in the course of her day-to-day duties and receives all of her instructions from the relevant project manager on sites in the ACT. For s (3) (a), Emma usually performs work for her employer in the ACT and her Territory or State of connection is the ACT. Example—worker usually works in more than one jurisdiction An employer carries on business as an interstate bus operator from premises in the ACT. Ray is engaged by the employer as a bus driver, mainly driving buses between Canberra and Sydney, NSW, but also driving buses between Canberra and Melbourne, VIC. Occasionally Ray drives charter buses entirely within the ACT for the employer. For s (3) (a), Ray usually works in the ACT, NSW and VIC. As s (3) (a) does not decide Ray’s Territory or State of connection, s (3) (b) needs to be considered. (7) In deciding whether a worker is usually based in a Territory or State regard must be had to the following: (a) if the employer provides a place from which the worker is expected to operate—that place; (b) if a place is stated in the worker’s contract of employment with the employer—that place; (c) the place from which the worker routinely receives day-to-day instructions from the employer; (d) the place where the worker attends to collect material for the purposes of their employment; (e) the place where the worker reports for administrative, human resource and other issues related to the workers’ employment with the employer. Example—worker usually based in a single jurisdiction Jenny is a sales representative for XYZ. Each morning Jenny is required to attend a warehouse in NSW to collect her employer’s products, which she is then required to distribute to various retail outlets in NSW and the ACT. Jenny uses a vehicle supplied by her employer, which she garages at her home in NSW. At the end of each day Jenny is required to return any unsold merchandise to the warehouse in NSW. Jenny works without day-to-day supervision. Jenny’s immediate manager is located in XYZ’s ACT office and is the person to whom she is required to send reports and time sheets and to whom she reports verbally by telephone from time to time. Jenny sends all written correspondence to her manager via a fax located at her home in NSW. All invoice books which Jenny needs to carry out her duties are mailed to her home in NSW from where she prepared all documentation related to her employment. For s (3) (b), Jenny is usually based in NSW for the purposes of her employment with XYZ. The employer’s NSW warehouse is the place provided by XYZ that Jenny is expected to operate from. Example—worker is usually based in more than one jurisdiction Paul is employed by an interstate trucking company that transports textiles across Australia. Paul is supplied with a truck for the purposes of his employment and is permitted to garage it at his home in the ACT while not in use. Paul transports goods between the ACT, NSW and QLD. His contract of employment states that he is employed to undertake transporting services across each of these jurisdictions. Paul routinely receives instructions from each of the depots he stops at in the ACT, NSW and QLD and receives ad hoc instructions via radio while in transit. For s (3) (b), Paul is not usually based in any single Territory or State. As s (3) (b) does not decide Paul’s Territory or State of connection, s (3) (c) needs to be considered. (8) In deciding where the employer’s principle place of business in Australia is located regard must be had to the following: (a) the place where the employer conducts the main part or majority of its business; (b) the address registered on the Australian Business Register in connection with the employer’s ABN; (c) if the employer is not registered for an ABN—the Territory or State registered by ASIC as the jurisdiction in which the employer’s business or trade is carried out; (d) if the employer is not registered for an ABN or with ASIC—the employer’s business mailing address. (9) Compensation under this Act is not payable in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker’s employment. (10) In this section: ABN—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41. ASIC means the Australian Securities and Investments Commission under the Australian Securities and Investments Commission Act 2001 (Cwlth). Australian Business Register—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41. ship means any kind of vessel used in navigation by water, however propelled or moved, and includes all of the following if used wholly or primarily in navigation by water: (a) a barge, lighter or other floating vessel; (b) an air-cushioned vehicle, or other similar craft. Territory or State, in a geographical sense, includes a Territory’s or State’s relevant adjacent area as described in schedule 2.