CSR Limited v McCourt No. Scgrg-97-260 Judgment No. S6417

[1997] SASC 6417

CSR LIMITED trading as CSR TIMBER PRODUCTS  v  McCOURT

Full Court: Cox, Duggan and Nyland JJ

DUGGAN J

Appeal by leave against a decision by the Workers Compensation
Appeal Tribunal ("the tribunal").

The respondent is employed by the appellant as a tree feller. He was injured in an accident which took place on 8th March 1996 while travelling from the appellant’s depot to a work site in a forest at Dartmoor. The tribunal upheld a decision by a review officer that the respondent suffered a compensable disability in the accident by reason of the fact that he was injured in the course of a journey of a type recognised by s30(5) of the Workers Rehabilitation and Compensation Act, 1986 ("the Act").

In so far as it is relevant to the present case s30 of the Act provides as follows:

1. (1)     Subject to this Act, a disability is compensable if it arises from employment.

(2)     Subject to this section, a disability arises from employment if -

(a)     in the case of a disability that is not a secondary disability or a disease - it arises out of or in the course of employment; or

(b)     in the case of a disability that is a secondary disability or disease -

(i)     the disability arises out of employment; or

(ii)     the disability arises in the course of employment and the employment contributed to the disability.
         . . .

(5)     A disability that arises out of, or in the course of, a journey arises from employment only if -

(a)     the journey is undertaken in the course of carrying out duties of employment; or
         (b)     the journey is between -

1. the worker’s place of residence and place of employment; or

1. the worker’s place of residence or place of employment and -

.        an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer’s request or with the employer’s approval; or

.        a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability,

and there is a real and substantial connection between the employment and the accident out of which the disability arises.

(6)     However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).

(7)     The journey between places mentioned in subsection (5)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker."

It was argued on behalf of the respondent that the journey in the present case was undertaken in the course of carrying out duties of employment within the meaning of s30(5)(a) and, alternatively, that the journey came within s30(5)(b) in that it was a journey between the respondent’s place of residence and place of employment and that there was a real and substantial connection between the employment and the accident.

I have mentioned that the respondent is a tree harvester.  He works in forests in the South-East of the State and is one of a crew of five.   At the time of the accident the appellant had established a depot in Mt Gambier.   It was used for vehicle and machine maintenance as well as serving as an office.

The members of the respondent’s crew were required to work in various parts of the local pine forests and, in the normal course of events, they would meet at the depot prior to leaving for the work site for that day.  On some occasions a worker would travel direct to the work site and a mileage allowance was paid in those circumstances.   However many of the locations were difficult to access in a vehicle other than a 4 wheel drive, particularly in winter time, and the general practice was  for the workers to assemble at the depot and then be driven out to work in a company utility provided for the purpose.

It was necessary for the workers to ensure that the equipment which they used was in proper working order.  This necessitated frequent sharpening of saw blades, the replacement of ruptured hoses for the machinery and the repair of bars which were used for the harvester heads.   The maintenance was constant and it was performed by mechanics based at the depot.  According to the evidence the usual practice was for workers to return to the depot after each day with the equipment for which they were responsible on an individual basis.  In other words it was equipment for the machines which were given to each of them to operate.  It was then stored there and orders were placed for sharpened chains, new hoses and bars and the like.  Furthermore each worker’s tool box had to be returned to the depot and kept there overnight.  The tool boxes and other equipment were then picked up in the morning.  There were occasions when a worker’s equipment would be picked up for him if, for example, he travelled directly to the work site.  However this seems to have been the exception rather than the rule.  If the workers were on day shift they would arrive at the depot before 4.30 am.  They would then collect their equipment and place it in the tray of the utility.  The members of the five man crew took it in turns to do the driving.

The respondent arrived at the depot at approximately 4.20 am on the day of the accident.  He collected his equipment comprising tool box, bars and sharpened chains and placed them on the tray of the vehicle.  One of his crew drove the vehicle which left the depot at 4.40 am.

Shortly after 5.00 am an employee working at another location made radio contact with the driver of the vehicle in which the respondent was travelling and advised that a machine to be used by one of those in the vehicle had not been shifted to the location at which he was going to work as had been arranged the day before.  If the worker assigned to this machine had been taken back to Mt Gambier immediately the other workers would have been late starting work, so it was decided to deviate to a location where one of the company’s trucks was being used so that the worker could get a lift back to the depot and the others could then go on to their work sites.  It was in the course of this deviation that the accident occurred at approximately 5.10 am.  The company vehicle overturned and the respondent was injured.

The main argument advanced by the respondent was that the journey answered the description in s30(5)(a) in that it was undertaken in the course of carrying out duties of employment. The effect of s30(5) was considered by this court in Transadelaide v Karanicos (unreported, 3 April 1996, S5536). Although not deciding the point, Doyle CJ was inclined to the view that subsection (5) is to be treated as an exception to subsection (2) and as dealing exclusively with journeys. His Honour then turned his attention to s30(5)(a) in order to consider the nature of a journey undertaken in the course of carrying out duties of employment. He said:

"I think that the approach to be taken is broadly similar to that outlined by Barwick CJ in Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 536. The test is to be applied in a liberal and practical manner. The inquiry is not restricted to those things which a worker is literally or specifically required to do. The concept of duties of employment in my opinion extends beyond things which the employee is obliged to do. I also consider that one is entitled to and obliged to take into account contemporary conditions and contemporary understandings of the concept of duties of employment. I consider that the following remarks of Dixon J in Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29 are apposite:

‘... As the test is not, and could not be, whether the employee was obliged to act as he was doing when the accident occurred, the inclusion of things arising out of the actual performance of his duty was, no doubt, inevitable, but, as a result, the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment.’

Having said all that it seems to me that the focus of the expression ‘duties of employment’ as a matter of ordinary language is a reference to the carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do.  This is by no means a precise test, and has to be applied in a common sense and practical manner.  But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker's job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things.  It is also necessary to view the journey in context.  By that I mean one should not look at the journey in isolation but should consider what preceded it and what was going to follow it.  Sometimes the link between the journey and the employment would only emerge when the journey was seen in context."

In my opinion the respondent in the present case was engaged in a journey which was reasonably incidental to the performance of his job.  It was an accepted part of the respondent’s daily work routine that he report to the depot each morning.   There was no strict requirement that he do so, but his daily routine involved the collection and transportation to the depot of tools and equipment which had to be taken there for maintenance.  On some occasions workers may have relied on others to assist in this respect, but the evidence discloses that it had become an individual responsibility.  This is not surprising bearing in mind that some element of judgment was required by the worker in relation to the maintenance requirements of the machinery allocated to him and there was an instruction that each worker’s tool box was to be kept at the depot.   At the start of the day each worker knew what his equipment requirements were for the day’s work.   It is true that a system could have been put into place whereby one worker was given the responsibility of picking up and transporting all the equipment as part of his work duties.   However no such arrangement was in place.   It was obviously more sensible to adopt a procedure whereby each worker was responsible for his own equipment.  Even if there was no specific direction that the workers deposit their equipment at the depot the day before and pick it up each morning, it must have been well known to the appellant that this appropriate work practice was in existence.

Furthermore I think that the transportation of the workers in a company vehicle was in the interests of the efficient operation of the appellant’s activities, ensuring as it did a suitable and reliable means of transportation of workers to work sites which were sometimes difficult to access.

There is another factor which is relevant in considering the context in which this journey was made.  The Timber Industry Award 1990 makes provision for payment to workers for time spent travelling to a work site.  The relevant provisions are as follows:
"(a)   Each employee in the bush shall have a fixed starting place which shall be the existing starting place.

New starting places in the bush shall be fixed by agreement between the employer and the union and in default of agreement, by the Australian Industrial Relations Commission.

(b)     When an employee has a fixed starting point in the bush the employee shall be paid at ordinary rates for all time occupied in travelling between the starting place and the work and for all the time in excess of half an hour back from the work to the starting point."

It was agreed that the Mt Gambier depot was a fixed starting point.

Despite the terms of the award, the appellant company directed workers to deduct the half hour from the outward journey instead of from the return journey from the work site to the starting point or depot.   It would appear that this was done for reasons of administrative convenience so that special rates such as overtime could be calculated more easily.

It is important to note that the workers must be paid ordinary wage rates for the time occupied in travelling.   They kept their own time books, recording the start and finish times.  The net working hours for the day were calculated by deducting half an hour from the total including travelling time.  In accordance with this system, if the respondent was a passenger in the employer’s vehicle he recorded his starting time for the day as 5.00 am.   If he was driving it was recorded as 4.30 am because the half hour was not deducted from the driver’s hours.  According to the evidence the workers took it in turns to drive.  If the outward journey took longer than half an hour then, under the administrative arrangements in place, the time for calculating the hours for a worker who was a passenger commenced during the journey.   The accident occurred at approximately 5.10 am and, in accordance with the practice for time recording, the starting point for the calculation of the total hours for which remuneration was due was 5.00 am.

The court was informed that the Industrial Relations Act 1988 (Cth) makes no provision for the variation of an award except by way of application to the Australian Industrial Relations Commission. It would appear, therefore, that the proper commencement time for the calculation of hours worked by the respondent on the day of the accident was 4.30 am.

But in any event I do not think that the departure from the award makes any difference to the relevance of this issue in the present case.  What is
 important is that the accident took place during the period for which the respondent was entitled to be remunerated.   The fact that he was entitled to ordinary rates of pay while travelling has the effect of merging the journey into the shift period for which he was to be remunerated.   The time the respondent commenced work in the forest had no bearing on the starting time of the shift.  If the award was applied to the respondent’s work situation his entitlement to remuneration commenced at 4.30 am.  Under the company practice it commenced at 5.00 am.

The fact that a worker is remunerated for a journey to work may be relevant in deciding whether the journey is reasonably incidental to the duties of employment. (cf Smith v Stages [1989] 1 AC 928; The State of South Australia (Department of Education and Children’s Services) v Attwell-Gill (unreported, Workers Compensation Appeal Tribunal A.105/1996)). In the present case I think it is safe to assume that the clause which I have quoted above was included in the award because of the time consuming journeys which might be undertaken in travelling to remote working sites. But by making ordinary rates of pay applicable to all but half an hour for such journeys, the award has led to the result in this case that the respondent was being remunerated at ordinary rates at the time of the accident. I think that this consideration adds weight to the argument that the journey was incidental to the performance of the respondent’s work duties.
         The combined effect of the matters which I have discussed leaves me in no doubt that the journey was undertaken by the respondent in the course of carrying out his work duties.  I can also see force in the argument that it could be considered as part of a journey between the respondent’s place of residence and his place of employment and that there was a real and substantial connection between the employment and the accident. (S30(5)(b))    However the focus in argument was on subsection (5)(a) and I find it unnecessary to resolve this further issue.
         In my view the appeal should be dismissed.
Cox J
         In my opinion this appeal should be dismissed.  I agree with the reasons of Duggan J.
Nyland J
         For the reasons expressed by Duggan J, I agree that the journey undertaken by the respondent was in the course of carrying out his work duties.  I agree that the appeal should be dismissed.