Injured at work outside NSW? You may still be covered by NSW workers compensation laws.
Usually a worker who makes a NSW workers compensation claim is injured in NSW. But what happens when a worker is injured in another state on a short visit or temporary work arrangement? In many instances, a claim can still be made under NSW law.
Employment must be connected with NSW
Section 9AA of the Workers Compensation ACT 1987 (NSW) provides that compensation is only payable under the NSW scheme in respect of employment that is ‘connected with’ the state, regardless of whether the injury happened in NSW. In order for a worker’s employment to be ‘connected with’ NSW, one of several tests must be satisfied:
- The worker usually works in NSW; or
- The worker is usually based for the purpose of employment in NSW; or
- The worker’s employer’s principal place of business is in NSW.
These tests operate in a cascading manner. That is, if the first test cannot be answered, the second test is applied, and so on. Section 9AA also provides further tests in exceptional circumstances where none of the above tests can be answered.
The worker usually works in NSW
Known as the ‘usually works‘ test, this is the first test to be applied. Section 9AA requires that the worker’s work history with the employer be considered, as well as the intentions of both the employer and worker. For example, has the worker worked for that employer in NSW for many years or only a short time? Did the employer and worker understand the work outside of NSW was only temporary? In addition, consideration of a ‘temporary arrangement’ where a worker works in another state for less than 6 months is not allowed. If the worker ‘usually works‘ in NSW, then their employment is ‘connected with’ NSW.
The worker is usually based for the purpose of employment in NSW
If it cannot be identified in which state a worker ‘usually works‘ then the next test is to consider where a worker is usually based for the purpose of employment. This involves a wider consideration of not just where a worker actually works, but the location where a worker resides or is based while carrying out that work. If the worker is ‘usually based’ for the purpose of employment in NSW then their employment is ‘connected with’ NSW.
The worker’s employer’s principal place of business is in NSW
If the worker does not usually work or is not usually based in any one state, then the employer’s principal place of business is considered. If it is in NSW, then the worker’s employment is ‘connected with’ NSW.
If any of the above tests are satisfied, making the worker’s employment ‘connected with’ NSW, then they are entitled to bring a NSW workers compensation claim if they are injured outside NSW.
Other states and territories also have same or slightly different provisions in their own workers compensation laws.
Case example: Stuckey v Wesley Contracting NSW Pty Ltd  NSWDC 32
This recent decision handed down by the District Court of NSW illustrates the application of the above tests. Mr Stuckey worked in the coal mining industry for most of his life. He was employed as a Mine Deputy by his own company, Wesley Contracting, in NSW from July 2007 until December 2011. He then worked in Queensland until August 2012 before stopping work. He later brought an industrial deafness claim against Wesley Contracting under NSW law.
Because hearing loss is a gradual process, when a worker is no longer employed, the ‘injury’ is deemed to occur when they last worked in noisy conditions. Mr Stuckey’s employment was noisy in both states. Did the ‘injury’ occur when Mr Stuckey last worked in NSW or Queensland? If in Queensland, then one of the section 9AA tests must be satisfied for Mr Stuckey’s NSW claim to succeed.
Firstly, the court considered Mr Stuckey’s work history with Wesley Contracting. He had worked 52 months in NSW and 8 months in Queensland. The court found Mr Stuckey’s work in Queensland was a ‘temporary arrangement’ as work was no longer available in NSW but if it became available, Mr Stuckey would have pursued it. It was concluded he ‘usually worked’ in NSW.
Secondly, the court considered the ‘usually based’ test. When working in NSW, Mr Stuckey was based in NSW, living in his NSW home. When working in Queensland, he was based in Queensland, living in a mining camp. As 52 months of his employment was based in NSW and 8 months in Queensland, the court found he was ‘usually based’ for the purpose of employment in NSW. This can be contrasted to a fly-in-fly-out worker for example, who may work in Queensland but live in NSW and regularly return home.
Mr Stuckey’s employment was therefore ‘connected with’ NSW. Although ultimately the court found the ‘injury’ occurred in NSW, even if it had occurred in Queensland, Mr Stuckey would be entitled to bring a NSW claim.
Seek legal advice
If you’ve injured yourself at work, had a claim denied or you need advice about a work-related injury, please contact our experienced Workers’ Compensation lawyers at Turner Freeman on 13 43 63.