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Usually works

Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83. Roche DP. 4.8.10.

60. The following principles can be extracted from the above authorities and are applicable in the determination of cases under section 9AA of the 1987 Act:

(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 v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 and Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 in Avon Products Pty Ltd v Falls [2009] ACTSC 141 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.

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