Alice Springs Abattoirs Pty Ltd v Finn, Joseph Charles
[1983] FCA 136
•08 JULY 1983
PTY. LTD.
And: JOSEPH CHARLES FINN (1983) 67 FLR 260
No. NTG 15 of 1982
Workmen's Compensation - Workers' Compensation
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Muirhead(1), Lockhart(1) and Jenkinson(2) JJ.
Workmen's Compensation - Whether respondent injured while travelling to his employment - Whether immediate purpose in making the journey was to enter upon the duties imposed by his employment - Respondent "going home" before "going to work".
Workman's Compensation Act (N.T.) sub-s. 8(2).
Workers' Compensation - Workman injured while travelling from place of temporary employment to home preparatory to commencing work - Workman's functions as union delegate to be carried out at or about place of work - Whether workman was travelling to his employment at the time of the accident - Whether accident arose out of or in the course of workman's employment - Whether workman was at the time of injury a "workman" for the purpose of the Workmen's Compensation Act (N.T.) - Whether workman's task of organising labour was deemed employment - Whether workman's work was done in performance of a contract as a co-contractor or as an agent of a principal to a contract of employment - Workmen's Compensation Act (N.T.), s. 8.
The respondent was injured while he was travelling as a passenger in his motor vehicle on a journey from his temporary employment at Tynong Station to his home in Alice Springs. He was a slaughterman and his functions as a union delegate were essentially to be carried out at and about the appellants' abattoir at Alice Springs and he was returning to Alice Springs with a view to resuming his employment as a slaughterman.
The respondent claimed compensation from the appellants under the Workmen's Compensation Act (N.T.) (the Act) on the basis that he was a workman who was injured while travelling to his employment. The question of liability was heard by the Workmen's Compensation Tribunal (the Tribunal) which determined that the respondent's injury was caused while he was travelling to his employment and that his employer was liable, by virtue of the provisions in s. 8(1) of the Act, to pay compensation. (The Tribunal did not determine which of the appellants was the employer upon which liability was to be imposed, nor did it decide the question of quantum.)
The appellants appealed to a single judge of the Supreme Court of the Northern Territory of Australia (the Supreme Court) who dismissed the appeal. By consent there was no evidence led before the Supreme Court and the appeal was argued upon the evidence before the Tribunal. The appellants appealed to the Full Federal Court of Australia where it was contended on their behalf that:
(1) the Supreme Court was in error in holding that the respondent was travelling to his employment at the time of the accident;
(2) the accident did not arise out of or in the course of the respondent's employment by the appellants so that no liability was imposed upon them under s. 7(1) of the Act; and
(3) the finding of the Supreme Court, that the respondent was, at the time he sustained his injuries, a workman for the purpose of the Act was erroneous.
Held: (1) Per Muirhead and Lockhart JJ. - The respondent was not travelling to his employment within the meaning of s. 8(1) of the Workmen's Compensation Act (N.T.) as he was "going home" preparatory to the commencement of his employment and not "going to work" at the time of the accident.
The Australian Coastal Shipping Commission v. Averell (1969) 122 CLR 348; Norwest Beef Industries Limited v. Janides (unreported) 8 July 1983, Full Court of the Federal Court of Australia, referred to.
Per Jenkinson J. - When regard is had to all the circumstances under which employment of that kind is to be found and performed in the Northern Territory, the respondent's journey to his home in Alice Springs is seen to have such a connexion with the employment he intended to undertake next day (if that employment were of the character just supposed) that he should be held to have been travelling to his employment within s. 8(1)(a) of the Act, when he was injured.
The Commonwealth v. Wright (1956) 96 CLR 536; Adcock v. The Commonwealth (1959-60) 103 CLR 194; The Commonwealth v. Hollis (1968) 118 CLR 305; The Australian Coastal Shipping Commission v. Averell (1969) 122 CLR 348 , referred to.
(2) Per Muirhead and Lockhart JJ. - The court agreed with the findings of the judge of the Supreme Court that the activities in which the respondent intended to engage on 30 and 31 March 1981 were part of the work of slaughtering under the system or work adopted and were properly characterised as activities arising out of or in the course of his employment or incidental to it.
Adcock v. The Commonwealth (1959-60) 103 CLR 194, referred to.
Per Jenkinson J. - If the work intended by the respondent to be carried out on 30 and 31 March 1981 had in fact been carried out by him on those days, he would have done the work either in performance of a contract between the employer of the one part and several co-contractors, of whom he was one, of the other part, or as an agent of the party or parties principal of the one part to a contract of employment of the other part to which the respondent was not a party, but in the making of which he had also acted as such an agent. If that be so, it could hardly be suggested that the work could have been characterised as "activities arising out of or in the course of" any employment of the respondent by the employer as a slaughterman at the abattoir, or as activities "incidental to" that employment.
Humberstone v. Northern Timber Mills (1949) 79 CLR 389; Zuijs v. Wirth Brothers Pty Ltd (1955) 93 CLR 561; Becker v. Carthew and Davis (1952) VLR 248; Hotel Kingston Pty Ltd v. Manolis (1977) 15 ACTR 25; Commonwealth of Australia v. Duncan (1982) 44 ALR 249; (1980) 50 FLR 449, referred to.
Per Jenkinson J. - Semble: The evidence supported a finding that there was made in November 1980 an agreement with the employer for the performance of work, to which agreement members at the time of the Alice Springs branch of the union were parties.
(3) Per curiam - The court agreed with the primary judge that the task of organising labour fell within the scope of the respondent's deemed employment because of the system of work agreed upon between the appellants and the committee including the respondent and this entitled his presence at the abattoir a couple of days before the commencement of the slaughtering.
(4) Per curiam, Jenkinson J., dissenting. - Accordingly, the appeal would be allowed. The matter would be remitted to the Workmen's Compensation Tribunal to make a determination in accordance with the court's reasons for judgment.
1983, May 24, 25; July 8. #DATE 8:7:1983
APPEAL.
The Workmen's Compensation Tribunal determined that pursuant to the provisions of s. 8(1) of the Workmen's Compensation Act (N.T.) the respondent's employer was liable to pay compensation to the respondent. The appellant companies, one of which was the employer of the respondent. The appellant companies, one of which was the employer of the respondent, appealed to a single judge of the Supreme Court of the Northern Territory of Australia who dismissed the appeal and the appellants appealed to the Full Federal Court of Australia.
P.J. Newman Q.C. and K. Curnow, for the appellants.
T.I. Pauling, for the respondent.
Cur. adv. vult.
Solicitors for the applicants: Mildren Silvester & Partners, Darwin.
Solicitors for the respondent: Masters Reeves, Darwin.
J.D.W.
1. The appeal be allowed;2. The matter be remitted to the Workmen's Compensation Tribunal to make a determination in accordance with this Court's reasons for judgment;
3. The respondent pay the costs of the appellants of this appeal and of the appeal to the Supreme Court. Appeal allowed.
Joseph Charles Finn, the respondent, was travelling as a passenger in his motor vehicle north along the Stuart Highway to Alice Springs when it left the road and turned over. The time of the accident is not entirely clear but it occurred either late in the night of Sunday 29 March 1981 or early in the morning of 30 March. He claimed compensation from the appellants under the Workmen's Compensation Act ("the Act") of the Northern Territory on the basis that he was a workman who was injured while travelling to his employment. Liability was disputed. The question of liability was heard by the Workmen's Compensation Tribunal without at that stage dealing with quantum. The Tribunal found in favour of the respondent. The appellants appealed to the Supreme Court of the Northern Territory where the appeal was heard by Kearney J. who dismissed it with costs. The appellants now appeal to this Court.The appeal turns on the relationship that existed between the parties at the time of the accident and the circumstances surrounding the journey to Alice Springs.
The appellants advanced three independent grounds of attack upon the judgment of the Supreme Court. First, it was submitted that the Supreme Court was mistaken in holding that the respondent was travelling to his employment at the time of the accident. Second, it was said that the accident did not arise out of or in the course of the respondent's employment by the appellants so that no liability was imposed upon them under sub-s. 7(1) of the Act. Third, it was submitted that the Supreme Court's finding that the respondent was, at the time he sustained his injuries, a workman for the purposes of the Act was erroneous.
There was no evidence led before the Supreme Court. The appeal was argued on the evidence before the Tribunal.
The facts are not in dispute. The respondent is an A grade slaughterman. He first started work at the abattoir conducted by the second appellant on 20 February 1980. In August 1980 the respondent was elected as a delegate of the Meat Industries Employees Union at the Alice Springs abattoir. Towards the end of each killing season the practice existed at that abattoir of two or three people representing the Union, including the Union delegate and the secretary of the Alice Springs branch of the Union, discussing with the management of the abattoir various matters relating to the next killing season including the number of men to be employed, an estimate of the number of beasts to be slaughtered, the amount of remuneration to be paid to the men and items of equipment to be supplied by management and by the men. Agreement about these matters is generally reached before the end of a killing season so that the men know what they will be doing when they return for the next season. The break between seasons is generally about three months. The men are paid on the basis of the number of cattle killed and the grade of slaughterman _ A or B.
The three Union men (referred to before the Tribunal and the Supreme Court as 'the Committee') who took part in the discussion with management at the end of the 1980 season preparatory to the 1981 season, were the respondent as Union delegate, Barry Dennis the secretary of the Alice Springs branch of the Union and Ray Evans, a member of the Union.
It was also the practice for the Committee to meet management shortly before the commencement of each killing season and arrange the final details including a daily estimate of cattle to be killed. This determines the number of men required for the job. Efforts are then made by the Committee to find suitable men for the job and enquiries are made of the men to ensure that they have the necessary equipment such as clothing, aprons and knives.
The respondent and the other committee members received no extra reward for performing these additional tasks, but the respondent enjoyed a reasonable measure of security of tenure in his employment because of his position as the Union delegate or, as he put it in evidence:-
'Q. What was the advantage of being a delegate?
A. Well, you are always assured of a job that's one advantage; but I don't know I just like being a delegate, that's all.
Q. When you say that you are always assured of a job, what did you mean by that?
A. Not too many managers sack delegates."
The system had benefits also to the appellants. They paid only on the basis of the numbers of cattle killed. They did not pay each man, but made one payment to the Union which allocated the money to the men according to their respective entitlements after deducting, in some fashion, money on account of tax. It also meant that management could deal with the Committee and be assured that on a given day a gang would appear at the abattoir with qualified slaughtermen to undertake the kill each day throughout the season. The allocation of manpower between members of the gang was substantially undertaken by the Committee.
By the end of December 1980, the Committee, including the respondent, had met representatives of the management of the appellants and reached agreement as to the arrangements necessary for the 1981 killing season. The respondent then went to Queensland for a holiday and returned to Alice Springs about 23 January 1981. The respondent, Mr Dennis and Mr Evans, met Lindsey Hart, the managing director of the appellants, and tried to establish a commencing date for the 1981 killing season but, because of the inclement weather in central Australia, this could not be done. At or about this time, the precise date is uncertain, it was arranged in discussion between Mr Hart, the respondent, Mr Dennis and Mr Evans in the words of Mr Finn:-
'...we had to be back a couple of days before the killing season _ whatever date it may have been. We had to be back a couple of days before that to meet with Lindsey to set up the arrangements for everything.'
Soon afterwards the respondent travelled south from Alice Springs to take up a temporary job as a fencer on a property known as the Tynong Station in South Australia close to its border with the Northern Territory. It is agreed that the distance by road from Tynong Station to Alice Springs is about 400 kilometres. He was accompanied by John Coady, a fellow employee at the abattoir.
On 29 March 1981, whilst working on the Tynong Station Mr Coady received a telegram from his wife informing him that the abattoir was commencing work on Wednesday 1 April. Mrs Coady gave evidence before the Tribunal that she sent the telegram after she was told by a Mr Meacle, stock buyer at the abattoir, of the proposed starting date and he asked her if her husband knew what it was. She told him where her husband and the respondent were working and said that she would let them know.
The respondent, Mr Coady and a third person set off later that day in the respondent's motor vehicle to return to Alice Springs. They took turns at driving. They stopped at Kulgera where the vehicle was refuelled and where they had a meal and some drinks. They then set off to Alice Springs. About 1 to 1 1/2 hours later, while Mr Coady was driving and the respondent was asleep in the back of the vehicle, it left the road at a point about 90 kilometres south of Alice Springs _ Orange Creek Station _ and overturned. The respondent sustained injuries.
The respondent gave evidence, which was not challenged, that if he did not have to be back at the abattoir on Wednesday 1 April he would not have left Tynong when he did and would not have driven during the night, that he probably would have left on the Tuesday morning and that he had one reason only for leaving when he did, namely:-
'To go back to the meatworks.....meet Mr Hart and the other lads and set it all up, that's all.'
Was the respondent travelling to his employment at the time of the accident?
Sub-section 8(1) of the Act provides:-
'Where personal injury by accident is caused to a workman while he is travelling to or from _
(a) his employment -
his employer shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment.'
It is common ground that nothing turns on sub-s. 8(2) which defines the word 'travelling'. The question is whether, assuming the respondent was a workman, he was travelling to his employment when he sustained his injuries.
In Australian Coastal Shipping Commission v. Averell (1969) 122 C.L.R. 348, McTiernan, Kitto and Menzies JJ. in a joint judgment, said (at p. 351):-
'In a series of cases, The Commonwealth v. Wright (1956) 96 C.L.R. 536; Adcock v. The Commonwealth (1960) 103 C.L.R. 194 and The Commonwealth v. Hollis (1968) 118 C.L.R. 305, the Court has considered the meaning and application of s.9A of the Commonwealth Employees' Compensation Act and has established, not without dissent, that a worker can only be said to be travelling to or from his employment if there is 'a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties', to use the language of Fullagar J. in The Commonwealth v. Wright (1956) 96 C.L.R. at p. 552. What has been found to be implicit in the section is the necessity for a journey from a place of abode, permanent or temporary, to a place where the duties of employment are to be performed. See The Commonwealth v. Wright per Fullagar J. (1956) 96 C.L.R. at p.553, and per Kitto J. (1956) C.L.R. at p. 557; Adcock v. The Commonwealth per Fullagar J. (1960) 103 C.L.R. at p.204, per Kitto J. (1960) 103 C.L.R. at p.205 and per Windeyer J. (1960) 103 C.L.R. at pp. 210, 213 and 214."
The judgment in Averell's Case binds this Court and applies to this case. The relevant principles including those expounded in Averell's Case are discussed by a Full Court of this Court in Norwest Beef Industries Limited v. Janides, a judgment also given today, and need not be restated. The essential question in the present case is whether the purpose or occasion of the respondent's journey from Tynong Station was to enter upon the duties which his employment imposed upon him.
The respondent, with other men, was travelling from his temporary employment at Tynong Station, to his home in Alice Springs. His employer's business was carried on in that town and upon the evidence his work as a slaughterman and his functions as a Union delegate were essentially to be carried out at and about the abattoir at Alice Springs.
It was the respondent's expressed intention to rest at his home, to breakfast and to remain in his bed until about midday when he intended to get in touch with Mr Hart at the abattoir to finalise arrangements and to assist in assembling qualified and duly equipped men for the killing season. The information in the telegram as to the commencement of the season certainly resulted in his departure from Tynong Station not long after it was received. But his journey was to his home, preparatory to the commencement of his employment. He was not travelling to his employment within the meaning of sub-s. 8(1). That entailed another separate and distinct journey.
When he undertook the journey from Tynong Station to Alice Springs the respondent, to use the common expressions, was 'going home', not 'going to work'.
For present purposes it does not matter whether 'employment' is regarded as a 'state of activity', a 'place of employment' or the 'duties of employment'. But it is plain from the authorities that the destination of the journey, in the course of which injury was suffered, is important, and it is essentially in cases where the place of employment and the place of living were one, that difficulties have been encountered in interpretation. In those cases the terms and obligations of the contract of service have been central to the debate.
Did the accident arise out of or in the course of the respondent's employment?
The appellants' second submission was that the activities in which the respondent intended to engage on 30 and 31 March 1981, prior to the commencement of slaughtering on 1 April, did not arise out of or in the course of his employment by the appellants and were not incidental to that employment. In these circumstances it was said that the injuries sustained by the respondent were not such as to impose upon the appellants the obligation of an employer under sub-s. 7(1) of the Act.
The notion of 'employment' in the context of sub-s. 7(1) includes all the incidents of employment and is not limited to actual work: Adcock v. The Commonwealth (1960) 103 C.L.R. 194 per Dixon C.J. at p. 199. Adcock's Case in fact concerned s.9A of the Commonwealth Employees' Compensation Act 1930 but its provisions are the same as those under consideration in the present case.
The appellants submitted that the activities to be carried out prior to 1 April arose from the respondent's position as Union delegate. The learned primary Judge said that in a sense that was correct, but that it was clear from the evidence that the system of work at the abattoirs entailed the carrying out by the Union delegate of certain necessary arrangements preparatory to the actual work of slaughtering. His Honour held that the activities in which the respondent intended to engage on 30 and 31 March were part of the work of slaughtering under the system of work adopted and were properly characterised as activities arising out of or in the course of his employment or incidental to it.
We agree with his Honour's findings in relation to this second issue.
Arrangements were made between Mr Hart, the managing director of the appellants, and the Committee at the end of the 1980 killing season for the commencement of the 1981 killing season. It was then agreed that the Committee would meet with the management of the appellants shortly before the commencement of the killing to finalise arrangements and attend to the work of engaging a gang of slaughterers. Arrangements were made in January or February 1981 between the Committee and Mr Hart to the effect that the Committee would be in attendance at the abattoir a couple of days before the killing season commenced. Mr Meacle, the stock officer of the appellants, spoke to Mr Dennis and to Mrs Coady during the week before the commencement of the 1981 killing season to ensure that the Committee knew that the season would start on 1 April so that they could be in attendance at the abattoir two days earlier, speak to the management of the appellants and make the necessary arrangements to obtain workmen for the season.
It is true that the Committee was not paid by the appellants for this preparatory work but it was of mutual benefit to the appellants and to the Committee in the sense to which I have referred earlier. The preparatory work was related to the work of slaughtering and it would be unreal to divorce it from the employment of the respondent by the appellants.
We turn to the third issue in this case.
Was the respondent an 'employee' of the appellants at the time of the accident?
The appellants submitted that at the time of the accident the respondent was not an employee of the appellants. The appellants conceded that he would have been deemed a 'workman' by virtue of sub-s. 6(2) of the Act on and after 1 April; but it was said that he sustained his injuries preparatory to the commencement of his employment, so that the appellants are not liable to compensate him.
The primary Judge held that the task of organizing labour fell within the scope of the respondent's deemed employment because of the system of work agreed upon between the appellants and the Committee including the respondent and that this entailed his presence at the abattoir a couple of days before the commencement of the slaughtering. We agree with his Honour's findings.
The appellants sought to establish that their engagement of the respondent was in the nature of a contract for services rather than a contract of service and that this demonstrated that any work done before the actual commencement of slaughtering on 1 April would have been done by the respondent purely as a Union delegate and would not have fallen within the scope of the terms of his employment by the appellants. We see no useful purpose in entering into the debate, which has attracted so much judicial attention in the past, about the distinction between a contract of service and a contract for services. The terms of the engagement of the respondent are ascertained by analysing the evidence not by attaching labels which, however necessary they may be in some cases, are unnecessary here.
Our earlier remarks made in reference to the first and second issues sufficiently deal with this question and in our view answer it against the appellants. The couple of days work that would have preceded the commencement of slaughtering on 1 April would have been an integral part of the arrangement made between the appellants and the Committee. It is not destructive of that arrangement that no remuneration became payable until the actual commencement of slaughtering. The distinctions which the appellants sought to draw between the slaughtering work itself and the steps preliminary to it are remote from reality.
We would allow the appeal. The respondent must pay the costs of the appellants of this appeal and of the appeal to the Supreme Court.
1. Appeal from a judgment of the Supreme Court of the Northern Territory of Australia (Kearney J.), by which an appeal to that Court against a determination of the Workmen's Compensation Tribunal was dismissed.2. Personal injury by accident was caused to the respondent while he was travelling in a motor vehicle. Upon his claim for compensation the Tribunal determined that the injury was caused while the respondent was travelling to his employment and that his employer was liable, by virtue of provisions contained in s.8(1) of the Workmen's Compensation Act, to pay compensation under that Act. The Tribunal has not yet determined which of the appellants is the employer upon which that liability has been imposed. The parties were content, both before the Supreme Court and in this Court, that the question remain moot and that the appeal be determined as if the appellants were a single person with which the respondent dealt in relation to the conduct by that fictitious person of cattle slaughtering at the Alice Springs abattoir.
3. Findings were made by the Supreme Court, and were not challenged, that the respondent was at relevant times a slaughterman whose employer at the Alice Springs abattoir negotiated before the commencement of each killing season the terms on which a cattle slaughtering gang of men would be engaged during that season. The negotiations were with representatives of what was described in evidence as 'the Alice Springs branch of the Meat Industries Employees Union'. At relevant times the respondent was one of three such representatives : he was known as the delegate. The other two representatives were Barry John Dennis, the branch secretary, and Ray Evans, who was known as the 'rover'. For the killing season which, it was proposed, should commence at the beginning of February 1981 these three had orally agreed in November 1980 with the employer's managing director that a certain sum of money would be paid by the employer for each beast slaughtered, that payment would be made without deduction in respect of income tax to the branch secretary, that the money paid would be apportioned among the members of the gang by officers of the Union, that a specified number of men (8 A grade and 27 B grade slaughtermen) would be required for the gang, that the selection of the members of the gang would be made by Union representatives, and that certain items of equipment and clothing would be supplied by the employer free of charge and other items at a price. At the same time the employer's managing director informed the three representatives of his expectation as to the number of beasts to be slaughtered in the coming season.
4. Because of heavy rain the commencement of that killing season was postponed several times. The respondent took temporary employment with a fencing contractor, John Steven Coady, who was also a meat worker at the Alice Springs abattoir. Both Coady and the respondent had their homes in Alice Springs. When they were to go some 400 kilometres south of Alice Springs to carry out fencing work on a station, arrangements were made between them and Coady's wife and the branch secretary Dennis that Coady's wife would notify them of the date on which the killing season was to commence, when that date should be determined by the employer, so that the respondent could return to Alice Springs several days before that date. The respondent would spend those days first in receiving from the employer information as to the number of beasts to be killed at the beginning of the season, particularly on the first days, so that he could determine the number of men required for the gang on those days, and then in contacting members of the Union and in arranging for the attendance at the abattoir of those who were required for work as members of the gang. For this work the respondent would receive no remuneration, either from the employer or from the Union, but it was work which the respondent and the other two Union representatives had agreed with the employer, at the time when the other terms of employment for the 1981 season had been agreed, should be carried out by representatives of the Union, and it was work in the performance of which both the managing director of the employer and the members and officers of the Union expected that the respondent would take a leading part. And it would not have been possible to undertake the cattle slaughtering proposed by the employer unless that work were done during the several days immediately preceding the commencement of the season.
5. Mr. Dennis and an employee of the employer severally notified Mrs. Coady, on or about 21 March, that the season would commence on 1 April and she told each of them that she would pass that information to the respondent and her husband. A telegram to her husband was sent by her to the station where they were working, but they did not receive the telegram until they returned to the homestead on Sunday 29 March from the place where they had been camped and had been working. They left the homestead for Alice Springs in a motor vehicle at sunset on that day. An accident occurred when the vehicle was about 90 kilometres south of Alice Springs, which the respondent had expected to reach after 2 o'clock in the morning of 30 March. There had been a stop for fuel and a meal before the accident occurred, in which the respondent sustained the personal injury in respect of which he claimed compensation. The respondent had intended to go to his home in Alice Springs, to rest and breakfast there, and to go at about noon on Monday 30 March to the abattoir, where he expected the employer's managing director to go at about that time, so that he might receive from the director information as to the number of beasts the employer proposed to slaughter in the first days of the season. He intended to carry out during the rest of that day and on the following day the work of arranging the attendance, at the abattoir on 1 April, of the men who would constitute the gang. He had no reason for leaving the station when he did other than to receive that information and to carry out that work. If he had been concerned only to attend at the abattoir on 1 April he would probably have left the station on the morning of Tuesday 31 March.
6. Section 8 of the Workmen's Compensation Act provides:
'(1) Where personal injury by accident is caused to a workman while he is travelling to or from _
(a) his employment (including a school referred to in sub-section (2) of section 7); or
(b) any place which it is necessary for him to attend to obtain a medical certificate or to receive medical, surgical or hospital treatment or compensation in respect of a previous injury,
his employer shall, subject to this Act, be liable to pay compensation in accordance with this Ordinance as if the accident were an accident arising out of or in the course of his employment.
(2) In this section, 'travelling" means travelling by the shortest convenient route for the journey but does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the workman's employment, attendance at the school or obtaining the certificate, treatment or compensation, as the case may be, unless, in the circumstances of any particular case, the nature, extent, degree or content of the risk of accident was not materially changed or increased by reason only of any such interruption or deviation."
In section 6(1) it is provided that in the Act, unless the contrary intention appears, the word ''workman' means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, or is oral or in writing, but does not include' certain classes of persons which it is unnecessary to specify.
Section 6(2) of the Act provides:
'(2) Where a contract to perform any work exceeding 100 dollars in value (not being work incidental to a trade or business regularly carried on by the contractor in his own name) is made with the contractor, who neither sublets the contract, nor employs workmen, the contractor shall, for the purposes of this Act, be deemed to be a workman employed by the person who made such contract with the contractor.'
Section 26 of the Act provides:
'(1) Where the Tribunal makes a determination under this Act, any party to the proceeding may appeal against the determination on a question of law or fact or both to the Supreme Court of the Northern Territory of Australia within the time and in the manner prescribed by Rules of that Court and such appeal may be by way of rehearing.
(2) The Supreme Court of the Northern Territory of Australia shall decide the matter of the appeal and may either dismiss the appeal or reverse or vary the determination appealed against and may make such order as to the costs of the appeal or the proceeding before the Tribunal or both as it thinks fit.'
7. The parties concurred in seeking the Supreme Court's determination of the appeal to that Court upon the transcript of the evidence before the Tribunal and the exhibits tendered to the Tribunal.
8. As a step in determining whether the respondent was travelling to his employment when he was injured, and in response to submissions advanced by the appellant (and repeated on the hearing of the appeal to this Court), Kearney J. gave the following reasons for characterising what the appellant intended to do on 30 and 31 March as within the concept expressed by the word 'employment' in s.8(1)(a) of the Act:
'The second submission was that the activities that the respondent intended to carry out on 30 and 31 March, prior to the slaughtering commencing on 1 April, were not activities which arose out of or in the course of his employment with the appellants or activities incidental to that employment. And so, it was contended, the accident in which he was injured was not such as to impose upon the appellants an employer's liability under s. 7(1) of the Act. The appellants submit that the activities to be carried out prior to 1 April were activities which arose from the respondent's position as union delegate. In a sense, that is correct. But it is clear from the evidence that the system of work at the abattoirs entailed the carrying out by the union delegate of certain necessary arrangements preparatory to the actual work of slaughtering. Thus the uncontradicted evidence shows that arrangements had been made in February between the three union representatives and the Managing Director of the appellants, to the effect that the respondent would be back (at his employment at the abattoirs) a couple of days before the killing season commenced.
The activities to be carried out by the respondent are succinctly stated in the background facts set out by the Tribunal and cited on pp. 2-3 hereof. To that statement it may be added that the uncontradicted evidence is that the delegate had to get together the members of the gang to carry out the slaughtering, and to see that they were properly equipped with the requisite clothing and, to some degree, with the requisite equipment. His activities clearly had to be performed, under the system of work agreed, to enable the slaughtering to be carried out. In my opinion, the activities which the respondent intended to carry out on 30 and 31 March were part and parcel of the work of slaughtering under the system of work adopted, and are properly characterized as activities arising out of or in the course of his employment, or incidental to it. For this reason, I would reject the appellant's second submission.
The third submission of the appellants is that at the time of the accident the respondent was not an employee of the appellants. It was conceded that he would have been deemed a 'workman" by virtue of s. 6(2) of the Act, but it was contended that that deeming related to his employment as a slaughterman, and that it was to commence on 1 April. His organising of the labour was, it was repeated, purely a union activity and not within the scope of his employment by the appellants.
This submission in my opinion fails on the facts. I consider that the organising of the labour fell within the scope of the respondent's deemed employment by virtue of the system of work agreed upon, and that this entailed his presence _ on the job, as it were _ a couple of days before the actual slaughtering commenced.'
9. If it be assumed that legally enforcable contractual relations had been constituted by the conversations in 1980 between the three Union representatives and the employer's managing director, it is then a question, to which the evidence did not provide an obvious answer, between what parties the contractual bonds had been forged. In my opinion the evidence cannot support a conclusion that any contract was made between the employer of the one part and any one or more of Dennis, Evans and the respondent of the other part, except perhaps a contract by way of warranty of the authority of those three contractually to bind the principal or principals whose agents they purported to be, and except perhaps a contract with each of those three severally for his employment, on the first day of the 1981 season, as a member of the gang if he should in the event be one of the gang which would attend for work at the abattoir on that day. The evidence will not in my opinion admit of any conclusion but that each of those three represented himself, and was taken by the employer, to be acting as one of the three agents authorised to make on behalf of their principal or principals a contract between that principal or those principals and the employer. The evidence leaves doubtful the identity, although not the existence, of the principal. If one were permitted to take judicial notice that the Australasian Meat Industry Employees Union is a body corporate having contractual capacity (by virtue of registration under Part VIII of the Conciliation and Arbitration Act 1904), the evidence might support an inference that references by witnesses to 'the Meat Industries Employees Union' and to 'the Union' were intended as references to that body corporate, and the evidence might support a conclusion that it was as agents of that corporation that those three made the agreement for the 1981 season. But it may be that their authority derived only from what was called in evidence 'the Alice Springs branch' of the Union. If no legal person existed in description of which those words might have been applied, it may be that the three men were acting as agents of all those who at the time the agreement was made were members of that branch; or members of whatever class Mr. Dennis comprehended by his reference in evidence to 'the Union in our shed', in contradistinction to 'the Union in Australia'; or members of a committee having the governance of that branch or of that 'shed'. But the evidence is in my opinion quite inconsistent with a conclusion either that those three were making as the only principals of the one part a contract with the employer of the other part which, inter alia, fixed the remuneration of more than 30 other men, or that those three were making two contracts with the employer, one contract, made by them as agents, for remuneration and working conditions at the abattoir and another contract, made by them as the only principals, for the selection and procurement of the gang to be employed. The evidence compels the conclusion, in my opinion, that in all they said during the conversations in November 1980 with the employer's managing director they spoke _ and were understood to speak _ as agents for a principal or principals the identity of whom or which was not clearly established by the evidence, but the existence of which could not be doubted. If what they and the managing director said on that occasion constituted a contract, for the selection and procurement of the gang to be employed, between the employer and a number of natural persons ascertainable by reason of their membership at that time of a particular association of natural persons _ 'the Alice Springs branch' of the Union, or 'our shed' or some governing committee _ the evidence would justify a finding that the respondent was himself at that time a member of the first two of the associations I have named, but not that he was a member of the third.
10. If as a member of a class so defined the respondent had been a party principal to a contract with the employer for the selection and procurement of the gang to be employed, he would in my opinion have been, if and when he had been engaged in the performance of that contract on 30 and 31 March, deemed by virtue of the provisions of s.6(2) to have been for the purposes of the Act a workman employed by the employer. Although the consideration for the work was not monetary, its value must, I think, have exceeded 100 dollars. Neither the respondent nor his co-contractors (whether members of the Alice Springs branch of the Union or members of 'our shed') regularly carried on a trade or business, severally or together, to which the work of selecting and procuring the gang was incidental, in my opinion. Although the evidence might justify a finding that a similar contract had been made with the employer in respect of each of a series of killing seasons preceding that which was to have commenced in February 1981, there is nothing in the evidence to justify the conclusion that those who made those contracts were engaging or offering to engage in a trade or business of selecting and procuring cattle slaughtering gangs. Their trade, in one sense of the word, was that of a slaughterman, but even if the word 'trade' in s.6(2) comprehends that sense, the work contracted to be done was not in my opinion 'incidental to' that trade. It was, rather, work which might be described as part of, as as incidental to, the functions of a Union officer, or the functions of a Union member, in particular industrial circumstances, but the respondent carried on no trade as such an officer or member. The words in brackets in s.6(2), construed as they have authoritatively been (see Humberstone v. Northern Timber Mills (1949) 79 C.L.R. 389; Zuijs v. Worth Brothers Pty. Ltd. (1955) 93 C.L.R. 561; Becker v. Carthew and Davis (1952) V.L.R. 248) would not in my opinion exclude the respondent from the application of the sub-section.
11. My conclusion is that, if the work intended by the respondent to be carried out on 30 and 31 March had in fact been carried out by him on those days, he would have done the work either in performance of a contract between the employer of the one part and several co-contractors, of whom he was one, of the other part, or as an agent of the party or parties principal of the one part to a contract with the employer of the other part to which the respondent was not a party, but in the making of which he had also acted as such an agent. If that be so, it could hardly be suggested that the work could have been characterised as 'activities arising out of or in the course of' any employment of the respondent by the employer as a slaughterman at the abattoir, or as activities 'incidental to' that employment. Those quoted expressions, which Kearney J. employed, derive from provisions in s.7(1) of the Act (by which a liability to pay compensation to a workman is imposed in respect of 'personal injury by accident arising out of or in the course of his employment') and from judicial exposition of provisions in similar terms. Those expressions were the subject of submission before the Tribunal and before this Court, not because any suggestion was made that the employer might have incurred any 'liability under s.7(1) of the Act', as Kearney J. recorded that submission had been made to him, but because it was conceived that what could be regarded as having been done 'in the course of his employment', even if only as 'incidental to' the performance of the work he was employed to do, might properly be characterised as 'his employment' for the purposes of s.8(1)(a). For the validity of such a conception authority is not lacking. Connor J. based his decision, as it seems to me, that the workman respondent in Hotel Kingston Pty. Ltd. v. Manolis (1977) 15 A.C.T.R. 25 had been 'travelling .... from his employment' when he was injured by accident, on the finding that, although the workman had not been engaged that day in any part of his service to his employer, he had been doing, immediately before he began to travel home, something which he was expected by his employer to do, that is to collect his wages, and was for that reason in the course of his employment while collecting his wages and was therefore travelling from his eployment while on his way home. Speaking of a case in which a workman had remained, for more than two hours after he had ceased work, at his place of employment in a social club provided by the employer, Fitzgerald J. observed, in Commonwealth v. Duncan 44 A.L.R. at 270: 'I do not think it open to doubt that, if a journey on which an employee was injured commenced at his workplace and, until his departure, he had been engaged there in the course of his employment, the journey would be a journey from his employment...'. And his Honour had at another point said (44 A.L.R. at 269) : 'Certainly, I am not persuaded that the mere fact that an employee had finished his duties for the day and departed from the immediate section of the premises in which he performed his duties to go to another part of the building or site to join his workmates for a drink and enjoyed their companionship would necessarily mean that he was no longer in the course of his employment'. And in the same case Kelly J. regarded as 'a matter essential to its consideration of whether the journey of the respondent was a journey from his employment by the Commonwealth' the question, which the Administrative Appeals Tribunal had abstained from resolving, whether the respondent was in the course of his employment while he was at the social club : 44 A.L.R. at 261. But the circumstances of this case were such, in my opinion, as would have placed the respondent on 30 and 31 March quite outside the course of any employment which, as I will for the present assume, he was to undertake as a member of the slaughtering gang on 1 April, if he had on those last two days of March done what he came to Alice Springs to do. The employment of the respondent to form part of the slaughtering gang at the abattoir, if it was ever agreed, was not agreed upon any term or condition that the respondent do the work he proposed to do on those two days. The work might have been done, without any breach of any agreement to which the employer was a party, by any person authorised in that behalf by the natural persons or the body corporate with whom or with which the employer had contracted for that work in November 1980. And to say that, if the respondent had done that work, he would have done something which he was expected or authorised by his employer to do or which was incidental to his employment at the abattoir on and after 1 April and which was therefore in the course of that employment, is in my opinion to apply phrases apt in exposition of the legal significance of one class of circumstances to a quite different class of circumstances. Activities of a workman spread over two days, before his service to his employer had been resumed, in performance of work which his employer had engaged independent contractors to do, cannot in my opinion be subsumed under conceptions relating to activities undertaken in intervals between work during the working day or immediately before or after the working day.
12. If, contrary to my opinion, it were material to consider whether the evidence could support a conclusion that the employer ever came under a contractual obligation to employ the respondent on 1 April at the abattoir, my opinion is that such a conclusion is not justified by the evidence. The contractual obligation which the employer may have assumed in November 1980 was to employ as members of the slaughtering gang those persons who should be selected for that gang by the other party or parties to the contract (or, perhaps, by some other person designated by it or by them) and who should present themselves for work in the gang at the appointed time. No obligation to employ a particular person would in my opinion arise until that time. There was evidence, in response to enquiry as to why the respondent should have accepted the office of delegate and as to what advantage he might derive from his tenure of the office, that the employer would be unlikely to refuse or terminate employment of the Union delegate. But acceptance of that evidence does not in my opinion cast doubt on the conclusion I have expressed, that no legal obligation ever fell on the employer to employ the respondent at the abattoir on 1 April.
13. If the respondent was a party to a contract with the employer for performance of the work which he in fact intended to carry out on the last two days of March, the question arises whether, by reason of those circumstances, he was 'travelling to .... his employment', within the meaning of s.8(1)(a), when he was injured.
14. In several appeals concerning similar legislation the High Court has formulated conceptions of an ample generality in exposition of the statutory requirement that injury by accident should be caused, if not in other circumstances entitling the worker to compensation, 'while he is travelling to or from ... his employment'. The primary conception is of employment as a 'state of activity .. as distinct from a place where that activity takes place': Commonwealth v Wright (1956) 96 C.L.R. 536 at 551. (Cf. Wright's Case 96 C.L.R. at 552-553, 557-558; Adcock v Commonwealth (1960) 103 C.L.R. 194 at 203-205). Of importance for the resolution of this appeal, as I think, are two other conceptions. First, the termini of the journey contemplated by the statutory provisions are, on the one hand, the place at which that activity has been, or is to be, undertaken by the worker and, on the other hand, 'the place which is the centre for the time being of the general pursuit of his own affairs', as distinguished from 'some place of limited activity': Wright's Case 96 C.L.R. at 557. The worker's life is conceived as divided 'into opposed compartments geographically separated, so that moving from one to the other satisfies the notion of a 'travelling' to or from his employment' (Adcock's Case 103 C.L.R. at 205). Second, 'there must be a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties': Wright's Case 97 C.L.R. at 552.
15. These conceptions were formulated neither uno ictu nor without dissent or difference of emphasis. And the terms in which the conceptions were expressed were chosen under the influence of the factual preoccupations which evoked their formulation. At first, in Wright's Case (96 C.L.R. at 557) Kitto J. thought of the worker's 'home or the place which at the time serves as his home' as adequately describing the location of that personal 'compartment' of his conceptually divided life. But in Adcock's Case Kitto J. recognised, as did Fullagar J., that a part-time soldier going from his civil employment to a military parade would be travelling to his employment as a soldier: 103 C.L.R. 205, 204. The concept of the opposed compartments geographically separated was formulated in response to the circumstances under consideration in those two appeals, that the claimant for compensation was a member of the permanent defence forces, quartered in the camp where he was serving, whose accidental injury was sustained in the course of a journey undertaken to visit a nearby city on pleasure bent and then to return to the camp during a short period of leave. The nearby city was thought to be a place of limited activity, not the centre even for the time being of the general pursuit of his affairs, and not where he had any place of abode, permanent or temporary. The persistence of the idea that where the place of abode is, there may be found that centre, is demonstrated by the decisions of the High Court in Commonwealth v Hollis (1968) 118 C.L.R. 305 and in Australian Coastal Shipping Commission v Averell (1969) 122 C.L.R. 348. In the former case the facts were in all relevant respects except one the same as in Adcock's Case: whereas in Adcock's Case the accidental injury was sustained on the way to the nearby city, in Hollis' Case the injury was sustained on the way back to the camp. Four of the five justices who unanimously denied that Hollis was entitled to compensation were of the opinion that a worker living where he works who travels on his own affairs during a period of leave, otherwise than to and from some other place of abode, does not travel to or from his employment, because his place of abode is his place of work. They considered that to be the ground of the decision in Wright's Case. In Averell's Case a seaman who lived on his ship visited his home during a period of 2 hours' leave when the ship was berthed in his home port. While returning to the ship with the intention of resuming work on his re-boarding the ship, as his duty was, he sustained accidental injury. In the judgment of the Court it was said (122 C.L.R. at 351):-
'What has been found to be implicit in the section is the necessity for a journey from a place of abode, permanent or temporary, to a place where the duties of employment are to be performed. ....
In this case the fact that the applicant was returning from his home to the ship provides the terminus a quo and the terminus ad quem for the seaman's journey, so that it was rightly held that, in the circumstances stated, he was travelling to his employment, notwithstanding that he was required to and did live on board his ship.'
16. The use by Fullagar J. of the expression 'immediate purpose' in description of the character of the journey which the statute requires was no doubt a response to the uncertainty concerning the worker's purpose in attempting to return to camp in Wright's Cases. Kitto J. observed (96 C.L.R. at 559) that :-
'the expression 'travelling to his employment' cannot be applied, in any fair use of language, except to a man whose object in his travelling is to get to that service, including its incidents. If the deceased soldier in the present case had been killed on the Sunday night instead of the Saturday night, it might have been inferred from circumstances that when the car struck him he was in the course of returning from his week-end leave in order to take up his duties at 7.30 on the following morning; and accordingly his journey might have been described as a journey to his employment, notwithstanding that in the normal course it would bring him to the camp earlier than was strictly necessary. But what was his object in returning to the camp on the Saturday night? He had been relieved of duty for the whole week-end. He had received nor order to return. There were no circumstances to suggest to him that if he were in the camp on the Sunday there was any likelihood of his being put on duty. Indeed, men being what they are, the fact that he was returning on the Saturday night may be thought to suggest that he felt reasonably confident that he could safely do so without imperilling the freedom of his Sunday. All that can properly being inferred is that he was minded to spend the night in camp. What he contemplated doing next day no one can say on the evidence. He may have been going to the camp merely for his own convenience, for the sake of the bed and breakfast which were to be had there, intending next day to continue attending to his own private occasions, whether by returning to Albury, or by going out on a shooting or fishing expedition or otherwise. Such hypotheses as these are at least as likely as that he was returning a day and a half early to his work. There is simply nothing in the proved facts from which it can be thought more probable than not that his purpose in making the journey to the camp was to get to his duties. The onus lay upon the respondent to establish that such was the case, and the onus has not been discharged.'
17. There was no uncertainty concerning the worker's purpose in Lebrocq v Commonwealth (Full High Court; unreported; judgment 13 August, 1962; noted 41 A.L.J. at p. 160). His home was in Scone a town some 302 kilometres north of Sydney, where he was required for a period of weeks to undergo training by his employer in a school, so that the duties of his employment for that period were attendance and study at the school in Sydney during the ordinary working hours of each week day. He was required to live in the Sydney metropolitan area while attending the school and he had taken a room in a boarding house there. But on the week-end he travelled from the school to his home in Scone. On Sunday evening he was travelling from his home in Scone to the boarding house, where he would sleep, so that he could travel early the next morning from the boarding house to the school. He sustained accidental injury before the journey to the boarding house was completed. His application for special leave to appeal to the High Court against a District Court order denying compensation was refused. No reason for the decision was given when the High Court's order was pronounced, except that leave was said to be refused 'on the merits', but the dialogue recorded in transcript between the members of the Court and counsel for the applicant discloses the reasons for the order. Although the worker's purpose in making the journey was to reach the school at the appointed hour on Monday morning, and although the use he intended to make of his room at the boarding house for rest was one of the means he employed of accomplishing that purpose, he was regarded as travelling, until he should have reached the boarding house, not to his employment, but to the boarding house. Kitto J., whose reasoning upon the statutory expression had prevailed in earlier cases, said to counsel for the applicant: 'You state it as if it were just one continuous journey, which in fact it was not, was it? ... There were really two journeys'. The transcript shows Dixon C.J. to have been of the same mind and there is nothing in the transcript to suggest that the third member of the Court, Owen J., took any different view.
18. The hypothetical case of the soldier returning to camp on Sunday evening, considered by Kitto J. in the passage I have quoted from his Honour's judgment in Wright's Case, is no doubt to be distinguished from Lebrocq's Case by the circumstance that the soldier had his place of abode where he worked, and therfore would have made no further journey after sleeping in camp.
19. There is, however, another circumstance which distinguishes the journey upon which the respondent embarked on 29 March from all the journeys which were under consideration in the cases I have cited. His was a journey undertaken to bring himself to the place where he was to commence _ not to resume after week-end leave or after any other regularly recurring recreational leave _ his employment. That is a circumstance which in the context of urban employment in the eastern or southern regions of this continent might be thought devoid of relevance to the question whether there can be found that 'real connexion' between the journey and the employment which the statutory provision requires. The journey which is made by a man who has lived in Sydney or Bendigo to his new place of abode in Melbourne, so that he may take up his new employment in Melbourne the next day, is perhaps not easily conceived, consistently with authority, as a journey to his employment. Nor would it be easy so to conceive a journey back to his place of abode in Melbourne of a man who had been away on annual or long service leave and who was to resume work the next day. But in the sparsley populated Territory, where the respondent's, and much other, employment is seasonal, the withdrawal of a man from an isolated centre of employment during one of those seasonal suspensions of the industrial or rural activity in which he is habitually, although intermittently, engaged, in order to earn his living another way during the period of that suspension or in order to resume during such a period a familial or other personal association, may provide a ground for conceiving his journey back to that centre at about the time for resumption of the industrial or rural activity as a journey to his employment, notwithstanding that 'the immediate purpose' of the journey was to resume in a permanent or merely seasonal place of abode in that centre 'the general pursuit of his own affairs' for a brief period before actually taking up the duties of his employment. Thus also may be conceived the journey of a man who goes to such an isolated centre to take up for the first time employment of that kind, for which he had previously contracted. The organization of the industry in which the respondent was engaged and the geographical distribtuion in the Northern Territory of places of employment has produced so different a pattern of life from that which prevails in regions of close settlement and of uninterrupted industrial and rural employment that the 'single generalization' which Fullagar J. attempted to frame in order to express 'the necessary connexion' between the journey and the employment (see 103 C.L.R. at 203-204) may, in my opinion, be qualified to admit of exception in favour of a worker who travels a substantial distance to the vicinity of the place where he is shortly to commence work, either in initial performance of 'a contract of service or apprenticeship' or of a contract within s. 6(2), or upon resumption of a seasonally interrupted employment, from the place which had been for a time the centre of the general pursuit of his own affairs, notwithstanding that his immediate purpose in making the journey was not to commence work, but to go to his place of abode in that vicinity or otherwise to order his own affairs in that vicinity. The patterns of industrial activity which geographical, climatic and economic conditions in the Territory have established invest such a journey with that quality which s. 8(1)(a) requires, in my opinion. The 'opposed compartments' of the respondent's life, adapted as it is to those patterns, are not to be conceived as if his journey was from a fencing job near Melbourne or Sydney to a job in a metropolitan abattoir of the one or the other city respectively.
20. I think that the qualification may be made without disobedience of the precedent authority of the High Court cases under consideration, but I think that the qualification is not to be made by reading the phrase 'immediate purpose' in a sense other than that in which, as I think, it was used. In my opinion the phrase includes a transferred epithet: it is not the purpose of the employee to which immediacy, in any of its denotations, is imputed; it is what is purposed ("either to enter upon the duties which his employment imposes on him or to absent himself temporarily from those duties") which is to be immediate, in one of the temporal senses of that word. So much appears, as I think, from the whole of the judgment in which the phrase is employed; but nowhere more clearly than in a passage wherein the contrast is drawn between the journey from employment _ as one in the course of which a sequence of destinations may exist, although it is only until the first destination is reached that the journey will satisfy the statutory requirement _ and a journey to employment _ as one in respect of which no such a sequence is possible :
'In the ordinary case of a civilian employee, while it would be too much to say that no difficulty can arise, no serious difficulty is likely to arise. For in such cases the circumstances will be present which were doubtless primarily in the contemplation of the draftsman of s. 9A. Such an employee will normally, to put it shortly, live in one place and work in another place. The daily journey from his home or place of abode to the place where the duties of his employment are performed may be regarded as an incident of that employment, and it is to an accident happening on such a daily journey that I have no doubt that s. 9A is primarily directed. The journey must be made by the 'shortest convenient route"; otherwise an accident happening in the course of it will be excluded by sub-s. (2) of s. 9A. But the conception which seems inplicit in s. 9A(2), of a regular journey from a place of abode to a place where the duties of an employment are to be performed is not, generally speaking, appropriate to the case of a member of the defence force. Such members will be commonly found to be stationed in camp or in barracks or in a ship. In effect they live in the place where the duties of their 'employment' are performed: they do not travel regularly to and from their employment. It does not, of course, follow that they are excluded from any benefit under s. 9A. They will from time to time go on leave, and return from leave. When they go on leave, they will normally have a destination in view, which may be a final destination or may be only a first destination. When they have departed from the performance of their duties and while they are travelling to that destination, I would think that they are travelling from their employment within the meaning of s. 9A. But such a man is not, in my opinion, travelling to his employment unless his immediate purpose in making the journey is to enter upon the duties of his employment." (96 C.L.R. at 553-554)
21. It does not seem to me that the precise analysis of purpose which is found in the reasoning of these cases sprang from a conviction that the statutory expressions themselves created criteria of liability by reference to a worker's purpose in travelling. A worker too far gone in liquor to have any purpose or any awareness of his destination might be taken from home to work by friends. If on arrival he were able and willing to start work at the appointed hour he would have travelled to his employment, in my opinion. Discrimination by reference to the worker's purpose is rather a means, found to be satisfactory in respect of considerable diversity of circumstance, of distinguishing between journeys which do and those which do not answer the statutory description. If in circumstances quite dissimilar to those of continuous employment in a populous area there is found enough, without recourse to 'immediate' purpose, to give assurance of that real connexion between the journey and the employment which s. 8(1)(a) requires, the journey will be within that paragraph, in my opinion.
22. While the respondent was at the station with Coady, that was the centre for the time being of the general pursuit of his own affairs: he was living there and earning his living there. If the work he intended to do in Alice Springs on 30 and 31 March were work for the performance of which he had made a contract with the employer, then s. 6(2) so operated as to produce the result that the work was 'his employment', within the meaning of that expression in s. 8(1)(a). When regard is had to all the circumstances under which employment of that kind is to be found and performed in the Northern Territory, the respondent's journey to his home in Alice Springs is seen to have such a connexion with the employment he intended to undertake the next day (if that employment were of the character just supposed) that he should in my opinion be held to have been travelling to his employment, within s.8(1)(a), when he was injured.
23. The question then remains whether the respondent was a party to a contract with the employer for performance of the work he intended to do on 30 and 31 March. It is not easy to find in the material before the Tribunal and before the Supreme Court evidence upon which such a conclusion might be based. But such a conclusion was stated by the Tribunal, and that statement is recited in the reasons Kearney J. gave for dismissing the appeal, and in those reasons his Honour does not in terms reject that conclusion. (As appears from the passage in those reasons which I have quoted, his Honour conceived the work intended to be done on the last two days of March to be related to the work the respondent was to perform at the abattoir on and after 1 April in such a way as to lead to the conclusion that the respondent was travelling to his employment when he was injured.) Doubtfully, I have come to the conclusion that the evidence will support a finding that there was made in November 1980 an agreement with the employer for the performance of the work, to which agreement the members at that time of the Alice Springs branch of the Union were parties. That finding is, I consider, more probable than any other which the evidence might be thought to suggest. Accordingly, I would dismiss the appeal.
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