PRIETO Applicant And COMCARE
[2010] AATA 546
•22 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 546
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1423
DIVISION ) Re DANIELLE PRIETO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date 22 July 2010
PlaceCanberra
Decision The decision under review is affirmed. .....................[sgd].........................
Professor R. Creyke, Senior Member
CATCHWORDS - COMPENSATION – injury received playing in SNOG soccer tournament – whether the activity was associated with employment – activity supported by agency’s social club, not agency – activity on weekend, not at place of work, nor part of work duties - objective test - decision under review affirmed
Commonwealth v Carter (1965) 7 FLR 223;
Commonwealth v Lyon (1979) 24 ALR 300
Commonwealth v Oliver (1962) 107 CLR 353
Commonwealth v Pearson [1982] unreported, 23 February 1982
Gregory v Comcare (1997) 72 FCR 196
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Kavanagh v Commonwealth (1960) 103 CLR 547
Mahon v Air New Zealand [1984] AC 808
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] A QB 456
Re Clark an Military Rehabilitation and Compensation Commission [2005] AATA 436
Re Kelly v Australian Telecommunications Corporation [1991] AATA 720
Re La Palombara and Commonwealth (1985) 6 ALD 526
Re La Palombana and Commonwealth [1984] AAT No 1662
Re Lowth and Comcare (2000) 64 ALD 747
Re Staddon and Commonwealth (1984) 5 ALD 253
Re Strang v Commonwealth [1984] AAT No 1395
Sue v Hill (1999) 199 CLR 462
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5, 5A, 5A(1), 6(1), 6(1)(c), 14
REASONS FOR DECISION
1. Ms Danielle Prieto was employed in 2008 by the Australian National Audit Office (ANAO). On 7 September 2008 she injured her right knee while playing soccer.
2. The soccer game took place on a weekend, and was not at her place of work, nor part of her work duties, and was not organised by her employer.
3. The game was part of a one day soccer tournament organised by the Social Network of Graduates (SNoG) in which teams from Commonwealth agencies competed.
4. On 22 November 2008 Comcare denied liability for the injury on the basis that the injury did not arise out of or in the course of Ms Prieto’s employment. That decision was affirmed on reconsideration on 15 December 2008.
5. On 8 April 2009 Ms Prieto sought review by the Tribunal.
Legislation
6. The following are the relevant provisions of the Act.
7. Section 5A(1) defines 'injury' to mean: ...
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment. ...
8. Section 6(1) of the Act provides:
(1) Without limiting the circumstance in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained: ...
c) while the employee was temporarily absent from the employee's place of work undertaking an activity;
(i) associated with the employee's employment; or
(ii) at the direction or request of the Commonwealth or a licensee ...
9. The prefatory words to section 6(1) indicate that the circumstances in which an injury may be treated as having arisen out of or in the course of an employee's employment are not exhaustive. Section 6(1)(c) is a provision which was included in the Act as part of the 2007 amendments.
Issues
10. The following issues were identified:
· Did Ms Prieto suffer an ‘injury’ while participating in a soccer tournament on Sunday 7 September 2008?
· Did Ms Prieto's knee injury arise out of, or in the course of, her employment with the ANAO for the purposes of section 5A of the Act?
Background
11. The following are the facts as agreed by the parties.
12. On Sunday 7 September 2008, Ms Prieto was injured while playing soccer. At the time she was employed at the Australian Public Service (APS) level 5 as an information technology auditor in the Assurance Audit Services section of the Australian National Audit Office (ANAO).
13. The soccer game occurred between discrete periods of work on a weekend. The soccer game did not occur at her place of work, it was not part of her work duties and it was not organised by her employer.
14. The game was part of a one day soccer tournament organised by the Social Network of Graduates (SNoG) - the 7th SNoG GradCup - in which teams from several Commonwealth agencies competed. The tournament was described as a 'SNoG version of the world cup soccer competition'. Ms Prieto was part of a team organised by the Social Club of the ANAO.
15. The SNoG organisation was a separate entity to the ANAO, being a non-profit organisation made up of and run by graduates employed by Commonwealth departments and agencies in Canberra. The ANAO paid SNoG membership fees for new graduate employees as part of their remuneration package on commencement with the ANAO.
16. The ANAO has a Social Club. The ANAO sponsors the end of year function organised by the Social Club, and has provided amounts of approximately $3,000 - $4,000 to the ANAO Social Club to contribute to the cost of the function in the last few years. On occasions the Social Club also organises and/or sponsors golf days, certain trips and BBQ sausage sizzles. Such events are clearly promoted as ANAO endorsed events and the ANAO considers that employees attending such events are deemed to be on duty during their attendance.
17. ANAO employees could use their work computer to create personal documents, send personal e-mails and access the internet for non work related purposes provided such use was not excessive, did not interfere with their work activities (or those of their colleagues) and was not offensive, harassing, potentially embarrassing to the ANAO or otherwise inappropriate. Activities of ANAO Social Club members and committee members fall within these principles.
18. On occasions the ANAO allowed its premises to be used by independent organisations including the Commonwealth Public Sector Union (CPSU), the Institute of Public Administration (IPAA), charities and health/welfare organisations such as Beyond Blue.
19. There is a reference to the ANAO Social Club in the ANAO Induction Manual and the Social Club is described as having been 'established for the benefit of all staff'. The ANAO Social Club is overseen by an elected committee and ANAO employees may 'join' the Club for a fee of $2.50 per fortnight, which is deducted from employees' pay by the ANAO and remitted to the Social Club's bank account.
20. The ANAO Social Club (Social Club) is an informal group of ANAO employees.
21. The Social Club occasionally provides basic functions and catering services to the ANAO on a full cost recovery basis.
22. The Social Club contributes to, and organises, a number of activities for ANAO staff, in support of a number of charities. It conducts raffles and other fund-raising activities and, even though it does not organise sporting teams, it has provided limited support (for example, through the payment of team entry fees) to several teams made up of ANAO staff members, including a touch football team, a twilight cricket team and the SNoG tournament soccer team. The Social Club has contributed to an annual skiing trip through payment of fees and promotion through ANAO publications. The Social Club also organises a children’s Christmas party for family and friends of Social Club members.
23. The Social Club operates its own bank accounts and is, in all other respects, completely financially independent from the ANAO.
24. In an e-mail dated 12 June 2008, Ms Octigan (the ANAO's representative for SNoG) asked David Sloan (Director, People Management Branch, ANAO) about ANAO sponsorship of 'one or two soccer teams to play in the SNoG soccer competition', specifically in relation to help cover the entry cost and how this could be arranged. In an e-mail of the same date Mr Sloan passed the request to Mr White (the President of the Social Club) asking 'Is this something the Social Club could pay for???' In an e-mail reply sent at 10.28am on 13 June 2008 Mr White stated:
Yes - the social club is happy to support - there is a limit on the amount and number of teams we support (and preference is where bulk of team members are social club members) but $50 a team is under the limit. I have referred to Carla as she controls the money.
David - not your area but would be good if they played in ANAO t-Shirts. Their [sic] are some in a pool that I think the touch football team uses (Colin Bienke) - but there may be others somewhere in corporate from the purchase about 18 months ago.
If not - are we in a position to buy some more before the end of the financial year?
25. At 10.44am on 13 June 2008 Ms Jago (the Treasurer of the ANAO Social Club) sent an e-mail to Mr Sloan and Mr White which said:
You can let Emma (Octigan) know to just contact me when she needs the money. I can either write a cheque or give her cash (but I'll just need some notice for the cash option, so I can make sure I have enough on hand).
26. At 10.26am on 21 August 2008 Ms Octigan sent the following e-mail to Mr White:
I am the ANAO representative for the Social Network of Graduates (SNoG). This means I inform the graduates of SNoG events and organise ANAO's involvement in them. Coming up on September the 7th is the SNoG GradCup which is a SNoG version of the worldcup soccer competition. 20 teams representing their agencies and playing under a chosen country, will play at least 4 games on the day and compete for 1st, 2nd and 3rd place, as well as best dressed team. We have entered a team into the competition, and we are playing as France!
I'm not sure if you remember but I inquired earlier in the year about getting sponsorship from the ANAO to cover the cost of playing. I was wondering if you were still happy to do that? The cost for the team to compete is $50.
I understand that as a condition of getting sponsorship the team is to wear ANAO t-shirts. I have asked the team and everyone is happy to do that. It will be a good opportunity to promote the ANAO to the other 19 agencies playing.
Happy to discuss.
27. At 6.04pm on 21 August 2008 Mr White replied to this e-mail (cc'ing in Ms Jago, Ms Anya Moore, Executive Director of the Corporate Management Branch at the ANAO, and Ms Dianne Rimington - Executive Director) in the following terms:
Thanks for your email. The ANAO Social Club (rather than the ANAO) is happy to support your team - if you see Carla she will give you the $50.
With regard to the T-shirts - you don't have to wear ANAO T-shirts - but if people are happy to do so and use it as an opportunity to promote ANAO that is fine.
Hope you have a great day.
28. Ms Prieto was invited to join the soccer team by Ms Octigan. In an e-mail to Ms Prieto dated 1 September 2008 Ms Octigan said:
Hi Danielle.
I've some good news. The SNoG soccer competition has opened itself to non-SNoG members and we have just had someone drop out of the team. You are the first person I thought of because of your enthusiasm - and no doubt you would be a real asset to the team. The competition is on Sunday September the 9th (sic) at the ANU soccer grounds. It is a competition against 20 other Agencies and we should at least get 4 games of soccer. Let me know if you would like to play.
By the way, I got the social club to pay the entrance fee!
29. Ms Prieto was not a member of the graduate cohort at ANAO. Not all members of the ANAO soccer team on 7 September 2008 were ANAO employees.
30. No restrictions were imposed on what activities people could engage in nor on how they were to conduct themselves while wearing an ANAO T-shirt.
31. No-one outside the Social Club participated in the decision of the Social Club to provide financial assistance to the social team.
Evidence of Ms Prieto
32. Ms Prieto said she had been employed by the ANAO since 7 February 2008. She confirmed that she had expressed interest in playing with the SNoG team in the soccer competition as she had a passion for the game and had been playing soccer for over seven years. When she was in her late teens she represented the Australian Capital Territory and also played in an Australian junior team in Japan. On 1 September 2008 Ms Prieto was told by the ANAO team organizer, Ms Emma Octigan, that the tournament had been opened up to all staff and not just graduates as several departments had trouble fielding a full team of graduates. Ms Prieto was invited to participate and she accepted.
33. Ms Prieto said that when she accepted the invitation, she thought she was playing for the ANAO. She was advised that the Social Club had agreed to sponsor the team, was providing ANAO logo T-shirts, and covering the entrance/registration fee for the tournament. Ms Prieto said she knew that the ANAO supported the ANAO Social Club and sometimes sponsored its activities, and she thought that in playing with the SNoG team she was playing for the ANAO. She had no idea about the legal relationship between the ANAO and the Social Club, and she had no reason to distinguish between the two. Nor did she understand the relationship between SNoG and the ANAO, or between SNoG and the ANAO Social Club. It was not till after she was injured that she was advised that the Social Club was a ‘separate entity’ to the ANAO and that the tournament was not a ‘formally endorsed event’ since it was sponsored by the Social Club, not the ANAO. She also pointed out that on 10 December 2008, an all-staff email advised of a new policy for endorsement of outdoor activities. This was after she was injured.
34. She said she did understand that it was not compulsory to wear the ANAO T-shirt and it was up to each player to decide. At the same time, she said she did not know the SNoG team had T-shirts until the day of the competition, so it was not something to which she paid attention, nor did it influence her decision. She agreed she had signed a form about insurance but had not taken any account of its contents, nor that it stated all players in the competition were required to have current personal accident insurance. She just considered that as the competition was played on ANU land, that the ANU policy would cover her. She said she did recall signing a form waiving any liability on the part of SNoG but since her fees were being paid for by the ANAO, she did not think this was significant.
35. She agreed that she had not sought the permission of her supervisor to play, although she recalled that at the time, her supervisor was away. Nor did she seek permission from anyone else in the ANAO since she thought that as the ANAO was involved in the organisation, the ANAO had already authorised involvement in the competition. She did speak about her participation and her injury to her Executive Director who advised her to seek union advice and legal representation but this was after the tournament. She agreed that the competition did not take place during core hours (between 7.30 am and 7.30 pm) and that she had not sought to claim flextime for having worked during a weekend, but said she had done other work outside core hours and had not claimed flextime.
36. Ms Prieto also acknowledged that physical fitness was not a requirement of her position at the ANAO as an Information technology auditor. The principal duties of that role required a sound knowledge and understanding of computing, and skills to equip her for computer training, transcription products and broadcasting services. She said she felt better when she is physically fit and this benefited her employer in that it improved her productivity. There were other advantages for ANAO from her involvement in the competition since it facilitated her networking given she was a new recruit, and also enabled her to market the ANAO. She also knew that not all those in the team were from the ANAO and that was also the case for SNoG teams from other agencies.
Other evidence
37. The policy on ANAO Health and Safety Management Arrangements was developed in 2007-2008 and at least in draft form was in force in September 2008,[1] and in final form became available to all staff on 20 August 2008.[2] That policy stated:
The principles underpinning coverage for workers compensation are governed by whether an agency has control over the activities of the staff member, whether the activities are at the direction of the agency and definitions of what constitutes the usual place of work.[3]
[1] ANAO Annual Report 2007-2008, Part 4, Management and Accountability, Occupational Health & Safety 81.
[2] Email from Anya Moore dated 19 October 2008 referred to the ‘HMSA and guidelines’ being completed and requesting that they be posted on the Intranet. Ms Moore confirmed that this occurred on 20 August 2008.
[3] Note to Introduction of the ANAO Health and Safety Management Arrangements.
38. Clause 14.3 deals with activities covered by Comcare and states:
In accordance with changes to the Act, staff will be covered for the following activities:
·Working at the offices of the ANAO, including the Sydney office;
·Working off-site on official duty (ie fieldwork) of a non enduring nature or irregular pattern;
·Travel from their place of residence to the location of a off-site work meeting, including the off-site work meeting (of a non enduring nature or irregular pattern);
·Work related interstate travel;
·ANAO official sponsored events, on-site and off-site; and
·Travel to and from the off-site event, including travel to and from their place of residence to the off-site event.
39. Clause 14.1 states, under the heading ‘ANAO official sponsored sporting/outdoor events’, that:
The ANAO and the National OHS [Occupational Health & Safety] Committee will carefully consider each proposal for official sponsorship of staff sporting or outdoor events, as to whether it poses a high risk of liability to the ANAO. Approval may be refused on the grounds that the event poses an unacceptable risk to the ANAO.
40. There is an ANAO Policy on Outside Activities and Employment, undated, but apparently promulgated to all staff on 10 December 2008, that is, after the incident involving Ms Prieto.[4] As such, the policy is relevant only as an illustration of practices in place in September 2008 but only to the extent that these practices are supported by other evidence known to personnel in the ANAO. Otherwise, it is not a policy which can be taken into account for the purposes of attributing liability in this case.
[4] Extract from ANAO Audit Control website.
41. The policy reflects the requirement in the Public Service Act 1999 (Cth) and the APS Code of Conduct that agencies are required to develop policies on outside activities, principally to avoid conflicts of interest by staff. The ANAO Policy states that ‘ANAO employees are able to seek permission to participate in activities outside the APS’ provided they do not conflict with their duties and that there is a ‘requirement that staff seek prior approval to engage in outside activities or employment’. The Policy acknowledges that, conflicts aside, ‘there are a range of activities that are deemed to be in the public interest and of professional benefit to the individual and the ANAO’.
42. The Policy notes:
Coverage for workers compensations under the Safety Rehabilitation and Compensation Act 1998 (SRC Act) is usually available when the staff member is undertaking activities as part of their normal duties and role. Subsection 6(1)(c) provides coverage for staff members who are temporarily absent from their place of work undertaking an activity (i) associated with their employment or (ii) at the discretion or request of their employer. A factor in considering whether an activity is ‘associated with their employment’ is the level of employer support for activities. One such factor is whether the employee is considered to be ‘on duty’ or granted special leave whilst participating in outside activities in direct association with their ANAO employment.
43. The definition of ‘outside activities and employment’ (clause 4) includes participation in a ‘community or sporting organisation’. The principles for deciding whether an activity is associated with employment includes the ‘need to take into account employer and employee interests … including whether undertaking he outside activity or employment is likely to affect the employee’s ability to perform their official duties, and the interests of the employees’ (clause 3.2) In approving applications matters to be taken into account by the Auditor-General or delegate include: ‘whether participation may confer a mutual benefit to the ANAO and the staff member; [and] whether undertaking the outside activity or employment is likely to affect the employee’s ability to perform their official duties’ (clause 6.2) .
44. Clause 6.3 states that ‘approval is not required where employees perform work or undertake activities for … sporting bodies’. Justification is that the ‘activities are undertaken in the employees' own time and there is no conflict of interest or adverse affect on their official duties’. Clause 8.1 provides when engaging in outside activities ‘employees will need to assess whether they have appropriate personal insurance coverage (such as professional indemnity and workers compensation). … Responsibility for such matters rests with the individual’.
Consideration
‘Injury’
45. The first issue is whether Ms Prieto has suffered an ‘injury’ for the purposes of the Act. Section 5A defines ‘injury’, as relevant, as ‘an injury …. suffered by an employee that is a physical … injury arising out of, or in the course of the employee’s employment’.
46. Ms Prieto suffered a physical injury, namely, an ‘acute tear of ACL [anterior cruciate ligament] and partial tear of PCL [posterior cruciate ligament] right knee’ on 7 September 2008 while playing soccer. However, to be compensable under section 14 of the Act the ‘injury’ must have been suffered by an ‘employee’. To be an ‘employee’ Ms Prieto’ must have been employed by the ‘Commonwealth’, a ‘Commonwealth authority’ or a ‘licensed corporation’ (section 5 of the Act). This raises the issue of the status of the bodies involved in this matter, namely, the SNoG, the ANAO Social Club, and the ANAO, their relationship with each other, and which of them employed Ms Prieto.
47. Ms Prieto was employed by the ANAO. It is only if the body which organised the tournament – SnoG or the Social Club - and the activity either conducted, fell within section 6(1)(c), such that their running of the event became an activity of ANAO, that Ms Prieto could be said to have suffered an ‘injury’, and that injury was suffered by her as an ‘employee’ for the purposes of sections 5A and 14.
48. A ‘Commonwealth authority’ is a ‘body corporate that is incorporated’, and a ‘licensed corporation’ means a ‘corporation that is the holder of a licence’ under the Act. [5] ‘Commonwealth’ is not defined for general purposes in the Act, nor, except in a geographical sense, by the Acts Interpretation Act 1901 (Cth) section 17(a). The word ‘Commonwealth’ has multiple meanings depending on the context.[6] It is the secondary meaning - ‘denoting Central Government’ or departments of state ‘which attend to its business’[7] - that it bears in the context of the Act.[8]
[5] Safety, Rehabilitation and Compensation Act1988 (Cth) s 4(1).
[6] ‘Commonwealth’ can mean: ‘First, its population basis; secondly, its territorial basis; thirdly, its federal principle; fourthly, its Imperial relationship; resulting in the establishment of a united people, upon a defined territory, organized on a federal plan, consistently with the Imperial connection, legally equipped for political action and development’. Quick & Garran The Annotated Constitution of the Australian Commonwealth (Legal Books, 1995), 366.
[7] Sue v Hill (1999) 199 CLR 462 at 499 per Gleeson CJ, Gummow and Hayne JJ.
[8] Quick & Garran The Annotated Constitution of the Australian Commonwealth (Legal Books, 1995), 368.
49. The ANAO is not incorporated. Hence, it is neither a ‘licensed corporation’ nor a ’Commonwealth Authority’.[9] It was established under section 7 of the Audit Act 1901 (Cth) now found in Part 6 of the Auditor-General Act 1997 (Cth). The agency is a ‘Statutory Agency’ under the Public Service Act 1999 (Cth) and its staff are engaged under that Act. It is also an ‘Agency’ under the Financial Management and Accountability Act 1997 (Cth). The ANAO is not a department of state. Rather the Auditor-General is an independent officer of the Parliament.[10] As such the ANAO is 'the Commonwealth' because it is a part of central government.
[9] Safety, Rehabilitation and Compensation Act1988 (Cth) s 4(1).
[10] Auditor-General Act 1997 (Cth) s 8(1).
50. There is no reference in any legislation applying to the ANAO to bodies affiliated with the ANAO including the Social Club, or SNoG. Nor are those bodies subject to the obligations the relevant legislation provides. That examination requires recourse to the common law.
Relationship of SNoG/Social Club with the ANAO
SNoG
51. The agreed facts in relation to the Social Network of Graduates (SNoG) are that: ‘The SNoG is a separate entity to the ANAO, being a non-profit organisation made up of and run by graduates employed by Commonwealth departments and agencies in Canberra’. However, the ANAO does pay SNoG membership fees for new graduate employees as part of their remuneration package on commencement with the ANAO.
52. The SNoG was set up approximately a decade ago to facilitate contact between graduates working in Commonwealth government agencies or departments and in the private sector in Canberra. Its principal object is to assist graduates to meet new people and familiarise themselves with the ACT. The Graduates Soccer Tournament at which Ms Prieto was injured was one of its activities. As a non-profit organisation SNoG is not in a position to bear the cost of Ms Prieto’s injury. As mentioned later, that is borne out by the disclaimer of liability included in the SNoG GradCup 2008 registration form and the requirement that participants have current personal insurance.
ANAO Social Club
53. The ANAO Social Club is described in the agreed facts as ‘an informal group of ANAO employees’. It has limited funds and all members work for the Social Club on a voluntary basis. It is an unincorporated association. The Social Club is recognised by the ANAO for certain purposes and these are publicised by management and through 'Auditorium', the Social Club's newsletter.[11] The Club has an identity separate from that of the ANAO. It has separate office bearers, bank accounts, and sources of funds, despite payment of members’ fees to the Social Club being administratively effected by the ANAO through deduction of the fee from an officer’s salary and remittal of the amount to the Social Club. If the Social Club provides functions and catering services to the ANAO they are ‘arms length’ transactions performed on a full cost recovery basis.
[11] ANAO Induction Manual 36.
54. The Social Club has no regular funding from ANAO for its activities, although the ANAO does provide funds for particular activities such as the annual end of year Social Club Lunch or an annual golf day. For these occasions, the activity is deemed to occur during the course of employment and the ANAO formally accepts liability for any injuries incurred.[12] A factor in deciding whether the ANAO will sponsor the activity is whether the level of risk attached to the activity is acceptable.[13]
[12] ANAO Health and Safety Management Arrangements clause 14.2.
[13] ANAO Health and Safety Management Arrangements clause 14.1.
55. Although the ANAO Social Club provides benefits for members of the ANAO and has been formed for that purpose, this does not make it part of the ANAO as a ‘Statutory Agency’ for the purposes of the Public Service Act 1999 (Cth), nor subject to the financial obligations as an ‘Agency’ under the Financial Management and Accountability Act 1997 (Cth).
56. The Tribunal finds that the neither the SNoG nor the ANAO Social Club has a sufficiently close relationship with the ANAO such that involvement by an ANAO employee in an activity organised or sponsored by either of those bodies would be regarded as ‘arising out of or in the course of [the person’s] employment’ with the ANAO. Nonetheless, that is not conclusive of the issues in this matter. The tests located in section 6(1)(c) and developed in the cases, to the extent relevant, determine whether an injury or disease which occurred outside the workplace and not during normal working hours should be compensable.
57. The tests in the cases are illustrated by the findings of Cooper J in Gregory v Comcare:
[O]rdinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. …
That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or activity and the employment.[14]
Legislative indicators
[14] Gregory v Comcare (1997) 72 FCR 196 at 201, 202.
58. The Act has, since 2007, contained a non-exhaustive definition of what constitutes ‘injury arising out of or in the course of employment’. Section 6(1)(c) of the Act states that an injury will be taken to have arisen in the course of employment outside the workplace where the activity was ‘associated with the employee’s employment or [undertaken] at the direction or request of the Commonwealth or a licensee’. This definition should be read in conjunction with cases which have previously explored these concepts.
59. Although the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and other Legislation Bill 2006 indicates that:
The Government’s primary objective with the workers’ compensation scheme … is to minimise the human and financial cost of work-related injury and disease while at the same time providing appropriate compensation and support for employees injured or made ill through employment[15]
that is not the only objective. As the Explanatory Memorandum also states:
It was the original intention of the legislation to ensure that there is a close connection to employment as the cause, aggravator or contributor of a worker’s disease or injury, before eligibility for workers’ compensation can be established.[16]
[15] Explanatory Memorandum to the Safety, Rehabilitation and Compensation and other Legislation Bill 2006, iv.
[16] Ibid at iii.
60. Reinvigorating this latter objective is evident in the adoption in the amendments of the requirement that for an injury or disease to be compensable, employment must have contributed in a ‘significant degree’ for compensation to be payable.[17] The Explanatory Memorandum acknowledged that this would ‘reduce the incidence of compensable claims’, particularly disease claims.[18]
[17] Ibid at v-vi.
[18] Ibid at vii.
61. Further in relation to clause 6(1)(c), the Explanatory Memorandum refers to the Productivity Commission recommendation that ‘coverage for recess breaks and work-related events should be restricted, on the basis of lack of employer control, to those at workplaces and employer sanctioned events’ and that ‘amendments reflect this approach’.[19] These descriptions and objectives can be taken into account to the extent permitted by sections 15AA and 15AB of the Acts Interpretation Act 1901 (Cth).
[19] Ibid at 6.
62. The events which led to Ms Prieto’s injury occurred on a Sunday and outside her usual workplace. Section 6(1)(c) therefore provides the starting point for assessment of whether her injury is compensable. That provision permits certain injuries to be said to have arisen out of or in the course of employment provided they meet the criteria in the two sub-paragraphs of section 6(1)(c). The sub-paragraphs are expressed in the alternative. An injury will fall within the provision if it arose from activity undertaken ‘at the direction or request of the Commonwealth’ (section 6(1)(c)(ii)). This sub-paragraph covers activities which are relatively specific and identifiable. The other sub-paragraph refers to an injury which arose from activity ‘associated with’ employment (section 6(1)(c)(i)). This sub-paragraph is less easily interpreted. What amounts to an association is not further defined in the Act.
63. To ‘associate’, according to the Macquarie Dictionary has multiple meanings, mostly focusing on the word as denoting the relationship between people. That meaning is not relevant in the context of section 6(1)(c). In this statutory context, the most appropriate of those meanings are:
1. to connect by some relation, as in thought; … 9. anything usu. accompanying or associated with another; an accompaniment or concomitant’.[20]
[20] Macquarie Dictionary (2nd edn, 1991), 99.
64. The first meaning requires only that there be some connection or link; the second is that the relationship should be one which is usual, expected, or well understood. Since the first meaning does not provide a criterion for the connection or association, and the second ‘usual’ accompaniment or concomitant is open-ended, even the ordinary or dictionary meaning of the provision may be regarded as ‘obscure’. That permits resort to the Explanatory Memorandum.[21]
[21] Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)(i).
65. The Explanatory Memorandum indicated an intention that the provision covers ‘employer sanctioned events’. So it would only be activities sanctioned by an employer that are ‘associated’ activities for the purposes of the section 6(1)(c)(i). That is consistent with the intent of section 6(1)(c)(ii). In other words the activity must either be sanctioned, expressly or impliedly, by an employer (section 6(1)(c)(i)), or specifically be directed or requested by an employer (section 6(1)(c)(ii)). What is sanctioned, expressly or impliedly, invites recourse to the facts and to guidance on this issue from the case law.
66. This meaning of ‘associated’ is also consistent with the statement in the ANAO Policy on Outside Activities and Employment, finalised after the events affecting Ms Prieto, but supporting the meaning adopted in these reasons. The Policy refers to the factors indicating ‘association with employment’ as including the level of employer support for the activity, whether the person is ‘on duty’ or has been granted special leave for the activities which are ‘in direct association with their ANAO employment’.
Injury from activity away from the place of employment undertaken ‘at the direction or request of the Commonwealth’ (section 6(1)(c)(ii))
67. The first question is whether Ms Prieto's involvement in the soccer tournament was entered into at the 'direction or request' of the ANAO. The playing of soccer was not compulsory, nor was it a condition of her employment contract. Ms Prieto’s supervisor or others within the ANAO did not pressure her to join the team. She did so because she loved the game and welcomed the opportunity to play. At most it could be said the ANAO countenanced, even encouraged the activity, but made it clear, through a senior officer, that it was a Social Club, not an ANAO, activity.[22] There is no evidence that the ANAO directed or requested Ms Prieto to play in the tournament.
[22] Statement of President of the Social Club, Mr Peter White, dated 12 August 2009, and see email from Mr White to Ms Octigan, 21 August 2008. Mr White was at the time Group Executive Director, Performance Audit Services Group, ANAO, an SES Level 2 officer.
68. Nor was the activity organised by the Agency or something over which the ANAO had any control. The ANAO Health and Safety Management Arrangements make it clear that in deciding what activities are in the course of employment for workers compensation purposes critical factors are whether the agency has control over the activities of the staff member, that they are directed by the agency, and involve an acceptable level of risk. These criteria were not met in relation to the tournament.
69. That policy is in line with the intention of Parliament in relation to section 6(1)(c)(i). The Explanatory Memorandum indicated that to be compensable there should be a robust connection with employment and that Comcare should accept as compensable only activities which are authorised or controlled by the employer.
70. The SNoG2008 Grad Cup was organised by the SNoG, a body not affiliated with the ANAO, was partially sponsored by the Social Club, not the ANAO, on land over which the ANAO had no control, during a weekend. This evidence satisfies the Tribunal that the ANAO neither directed or requested involvement in, nor controlled the tournament. On that basis, the activity was not one in which Ms Prieto's involvement could be said to have arisen out of or in the course of her employment because she had been directed or requested by the ANAO to participate.
Injury from activity away from the place of employment ‘associated with' employment (section 6(1)(c)(i))
71. The second question is whether the activity is 'associated' with Ms Prieto's employment, that is, it was employer sanctioned, expressly or impliedly by the employer. This requires an analysis of the facts to decide whether the ANAO expressly or impliedly sponsored the soccer team. Discussion of this question requires determination of a preliminary matter, namely, whether it is the subjective perception of the facts which are determinative or whether the test is objective.
Subjective/objective test
72. The text of section 6(1)(c)(i) gives no indication of which approach – a subjective or an objective test - is to be adopted. The Tribunal has, therefore, had recourse to the case law to assist it in reaching a conclusion. The leading case is Hatzimanolis v ANI Corporation Ltd[23] in which the majority of the High Court adopted as an organising principle for deciding whether an injury was sustained in the course of employment ‘whether the workman was doing something which he was “reasonably required, expected or authorized to do in order to carry out his actual duties’.[24] Use of ‘reasonably’ and ‘actual’ suggest that the test is objective, not subjective.
[23] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
[24] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 479 per the majority (Mason CJ, Deane, Dawson and McHugh JJ).
73. Equally, in discussing the cases where an injury has occurred in a discrete interval between periods of work, the majority went on to say that an activity ‘will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way’.[25] In determining whether there has been an express inducement or encouragement, the law expects objective evidence. Courts and tribunals are reluctant to reach conclusions by means of inference or implication without clear support in the facts.[26] That is evidenced by the requirement that what is incidental to the activities of particular employment must be reasonable.[27]
[25] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 484.
[26] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] A QB 456 at 488; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; Mahon v Air New Zealand [1984] AC 808 at 821.
[27] Re La Palombara and Commonwealth (1985) 6 ALD 526 at [20]; Re Clark and Military Rehabilitation and Compensation Commission [2005] AATA 436 at [57-58].
74. Indeed it would be surprising if an employee’s personal but unreasonable and inaccurate belief about a legal relationship could determine legal compensability. Such a view might discourage employees’ from discovering the legally correct incidents of their employment.
75. On balance, the Tribunal finds that it is an objective test to determine whether an activity which resulted in an injury to an employee was 'associated with' employment such that it could be said to arise out of or in the course of employment. The test should not be based solely on the personal belief of the person injured. That is the standard which should apply to the circumstances and to the inferences which must be drawn from those circumstances pertaining to Ms Prieto's participation in the soccer tournament.
Express sanction
76. Did the ANAO expressly or impliedly sanction Ms Prieto's involvement in the SNoG tournament? An obvious indicator of express sanction is that the ANAO sponsored the tournament. There is no objective indication on the facts that the ANAO did so. For example, a statement for the purposes of the hearing by Ms Anne-Marie Moore, Executive Director (SES Band 1) Corporate Management Branch of the ANAO, noted that: ‘The ANAO did not sponsor, endorse or organise the SNoG soccer tournament held on 7 September 2008, or the team of players who were employed by the ANAO’.
77. Indeed, the evidence is that there are only a limited number of ANAO sponsored activities and that to obtain sponsorship requires formal approval by the Auditor-General or a Deputy and this will not be granted unless the ANAO is satisfied that the activity is one with a minimal level of risk. There is no indication that the level of risk of the tournament was even considered by the ANAO, adding force to the finding that this was not an ANAO sponsored event.
78. Official sponsorship or endorsement is a critical factor to distinguish activities which will be covered by Comcover insurance. This is illustrated by a comparison between the sponsorship of the annual golf day and certain functions such as the end of work period BBQs/Christmas Party. For the former, ANAO employees who attend are deemed to be on duty so that they are covered by workers compensation, and this is evident in the formal approval for such activities.[28]
[28] See, for example, the Minute to the Deputy Auditor-General approving ANAO sponsorship of the annual golf day in 2009.
79. The process for approval for the annual golf day took the form, for example, in 2009, of a request directly to the Deputy Auditor-General, in a Minute dated 11 November 2009, for ANAO sponsorship. Emphasis was placed on the ‘opportunity to boost morale’ and social networking, the need for staff to be ‘deemed to be on duty’ in order that the staff be covered for workers compensation, the requirement for approval by supervisors for employees to attend, and the fact that the activity was ‘low risk to staff safety’. Advertisements for the day featured the fact that ‘Participants my utilise leave of absence using either flex leave, annual leave or an agreed arrangement with their supervisors (see ANAO Workplace Agreement Clause 30.2)’.
80. The Tribunal notes that formal sponsorship by the ANAO of the SnoG soccer tournament was declined by the ANAO in favour of sponsorship by the Social Club. In addition, Ms Prieto did not specifically seek permission from her supervisor to take part in the SNoG competition.[29] Ms Prieto said the person was away at the time but she did not seek such approval from anyone else in authority. Nor did she seek overtime payment for what she believed to be an ANAO authorised activity undertaken outside core hours of work. Although she said she had done work outside core hours and not claimed on other occasions, the fact that this was a voluntary activity, undertaken on a Sunday, in a team, not all of whom were from the ANAO, and therefore not likely to be paid for nor covered for insurance by the ANAO, does not support Ms Prieto's belief that this was an ANAO sponsored activity.
[29] Re Lowth and Comcare (2000) 64 ALD 747 – where permission of the direct supervisor was sought and given and where the injury was deemed to be an injury within the definition in the Act.
81. This finding is supported by contrasting the facts in Commonwealth v Lyon[30] with those of Ms Prieto. In Lyon a worker was injured playing rugby, in a team comprised solely of Customs officers, played during the lunch hour, in an interdepartmental competition, for which Customs did not require players to make up the time taken to play. The employer made premises available for changing, transported the players to the playing field, the organisation and meetings in relation to the team activities were held on the employer’s premises, with the employer’s knowledge and during work time, and the playing of the game was encouraged in various other ways.
[30] Commonwealth v Lyon (1979) 24 ALR 300.
82. By contrast, the 2008 soccer tournament was not a regular activity during the lunch hours in a working week.[31] This was a competition which took place on an annual basis, on one day of the year, and in a weekend. The competition was open to agencies within the Australian Public Service but was not exclusive to them. Nor was the ‘ANAO’ team comprised solely of ANAO graduates or employees. The tournament was played on grounds not covered by the insurance of the employer nor owned by the employer and to get to which players had to provide their own transport. The circumstances are sufficiently different to distinguish the two cases.
Implied sanction
[31] Commonwealth v Oliver (1962) 107 CLR 353.
83. That leaves the issue of whether the ANAO impliedly sanctioned or approved of the activity. This issue is considered taking into account the tests from the cases which have identified those indicia that an activity has arisen out of or in the course of employment. The majority in Hatzimanolis expressed the tests in these terms:
A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way....
Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.[32] (emphasis added)
Was the activity 'authorised, encourage, or permitted' or 'induced or encouraged' by the employer?
[32] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 482.
84. It is clear that playing soccer and engaging in exercise is neither something Ms Prieto could be expected or authorized to do, nor was it reasonably incidental to the duties of Ms Prieto’s employment as an information technology auditor at the ANAO.[33] Although she said she felt better when she was fit and this helped her be more productive, being fit is not an inherent requirement of her position. Nor had she been encouraged by a supervisor to keep herself fit and to engage in sporting activities. For that reason the cases on fitness, particularly for people in the armed forces, are not helpful in deciding whether playing soccer could be considered to be an activity impliedly sanctioned by the ANAO.[34]
[33] Kavanagh v Commonwealth (1960) 103 CLR 547 at 572 per Menzies J.
[34] Commonwealth v Carter (1965) 7 FLR 223; Re Staddon and Commonwealth (1984) 5 ALD 253, approved on appeal by Fox J, unreported, 15 February 1984); Re Strang v Commonwealth [1984] AAT No 1395, 26 January 1984); Re Law Palombana and Commonwealth [1984] AAT No 1662, 25 January 1984); Commonwealth v Pearson [1982] unreported, 23 February 1982; Re Kelly v Australian Telecommunications Corporation [1991] AATA 720; Re Lowth and Comcare (2000) 64 ALD 747; cf Commonwealth v Lyon (1979) 24 ALR 300; Commonwealth v Oliver (1962) 107 CLR 353.
85. Although Mr White, in his email of 21 August 2008, responding to Ms Octigan's email requesting ANAO sponsorship, noted that it would be 'an opportunity to promote ANAO', indicating some encouragement for the activity, he deliberately stated that the financial support for the team was to come from the Social Club, not the ANAO. This distanced the ANAO from the event and negated any suggestion that it was ANAO sanctioned.
86. That finding is reinforced by the facts relating to use of ANAO T-shirts. Again, Mr White specifically noted in his email of 21 August 2008 that players did not have to wear ANAO T-shirts, a fact of which Ms Prieto was aware. Had the event been ANAO sponsored or sanctioned it is likely that use of the T-shirts would have been compulsory. That was not the case. In other words, the ANAO permitted the use of T-shirts, but left it to the Social Club to encourage the players to wear them, and specifically did not require the team to do so. The ANAO thereby stopped short of formally sanctioning, even impliedly, the activity.
Reasonableness of Ms Prieto’s belief as to the relationship between ANAO and Social Club
87. A further issue is whether Ms Prieto’s perception of the relationship between the ANAO and the Social Club is reasonable and as such that the ANAO should accept that her injury occurred during the course of her employment.
88. Ms Prieto said in evidence that when she accepted the invitation to join in the tournament she thought she was playing for the ANAO. She understood that it was the Social Club which was sponsoring the team, that the Social Club was providing the team’s ANAO logo T-shirts, and was covering the entrance or registration fee for the tournament. However, Ms Prieto said she knew that the ANAO supported the Social Club and sometimes sponsored its activities, and she thought that in joining the team she was playing for the ANAO. It was not till she was injured that she was advised of the legal relationship between the two.
89. Ms Prieto’s understanding of the relationship between ANAO and the soccer tournament was echoed by others.[35] For example, Mr Stewart Ashe said in an email to Ms Prieto on 22 January 2010 following her request for his perception:
I believe that we were representing the Australian National Audit Office (ANAO) at the SNoG soccer tournament in 2008. I believed this prior to the event and on the day of the event. I recall that the tournament was organised on the basis of enrolling teams from public sector departments and agencies, and that the ANAO team was organised internally by ANAO staff within the ANAO during work time. My recollection was that only ANAO staff were eligible to play. Finally, we were wearing ANAO shirts during the tournament that clearly identified us as the ANAO team.
[35] Including Mr Ian McDonald and Mr Darren Molineux.
90. Similarly, Ms Ambrose Sharp said in her email of 22 January 2010:
We were not a social group as we were when we played indoor cricket. … [T]he competition was organised through the SNoG, which as their name suggests is a social group, however, of ‘graduates’ of the ANAO. This is an exclusive group for those representing an agency. Further the ANAO often contributes to SNOG stuff – so on one hand they cannot support the group and say ‘their’ staff members are representing the agency and in-kind contribute shirts, money etc, and on the other hand when something goes wrong say they are non-partisan or affiliated with the group and its events and the ‘ANAO’ staff it has representing it at subject events.
In a statement dated 2 February 2010, Mr Thierry Guerin said:
Danielle, myself and the others on our team were representing our place of work (the Australian National Audit Office, hereafter referred to as ANAO) that day. The ANAO Social Club provided us with ANAO t-shirts to wear that day. The ANAO also organised and paid for our SNoG memberships; without such funding SNoG would not exist and be able to organise events such as the one that took place that day. The other teams participating that day were each comprised of players from other departments – a team contained players from the one workplace; each player was representing their respective workplace.
The ANAO’s Auditorium’ Newsletter of October 2008 also stated ‘The ANAO recently competed in the Social Network of Graduates (SN0G) 2008 GradCup as Team France’. (emphasis added)
91. The Tribunal finds that Ms Prieto and others did entertain such a belief. However, the issue is whether that belief was reasonable.
Was belief reasonable?
92. Ms Prieto said she thought that the ANU, not ANAO, would provide insurance cover for any injury. That is supported by an email from Mr Simon Ansell, a Graduate in Airservices Australia, dated 16 June 2008 which noted: ‘In terms of insurance, we will be covered by personal injury due to the fields at ANU. However, we are trying to work out what we will do about public liability insurance’. There is no indication on the evidence whether Ms Prieto was aware of that email. However, the fact that she thought the ANU would cover her raises an inference that she had heard there would be some insurance coverage by the ANU.
93. At the same time she said she believed that because the ANAO had contributed to the entrance/registration fee, it must also have covered her for workers compensation insurance. Against this belief is the email from Ms Octigan to Ms Prieto dated 1 September 2008, that mentioned that Ms Octigan ‘got the social club to pay the entrance fee’. Mr Prieto must thereby be taken to know that it was not an ANAO sponsored event. Equally, Ms Prieto acknowledged that she knew that there was no obligation to wear an ANAO T-Shirt when an obligation to do so would have been expected had it been an ANAO-sponsored occasion.
94. Ms Prieto was also asked to sign a form containing a disclaimer before playing in the tournament. That disclaimer, stated, under a bold heading ‘SNoG is only responsible for organising the event. Playing Soccer can be a dangerous sport and I agree to do so at my own risk’. Consistent with that statement under a bold heading ‘Insurance Cover’ was a requirement that ‘as a participant in the SNoG2008 Grad Cup’ players are expected ‘to have current primary health insurance for the duration of the 7th of September’.
95. These statements are a clear indication that playing in the tournament was at an individual's own risk. No mention is made of agencies possibly covering for injury. Any such implication is negated by the requirement that players must have current personal insurance. On that basis, Ms Prieto’s understanding that the Social Club, alias in her mind the ANAO's payment of the registration fee for the team, meant that they would accept liability for injury was insufficient to make her belief a reasonable one in the face of the clear signals in the registration form and the other evidence.
96. Nor was her belief reasonable that the Social Club and the ANAO were one entity for legal liability purposes. The ANAO’s Induction Manual refers to the ANAO Social Club and states that ‘Staff can join the Social Club for a fee of $2.50 per fortnight which is deducted from your pay and can be arranged through the Personnel Section’. This information indicates that the Social Club is a separate entity, that membership is voluntary and is not an incident of employment with the ANAO, and that membership must be arranged specially.
97. It is clear that Ms Prieto’s beliefs about the relationship between SNoG and ANAO and between the Social Club and the ANAO were based on presumptions and imprecise understandings of the legal position and that the misunderstanding was shared by her team mates. Nonetheless, that does not make the belief reasonable.
98. Counsel for Ms Prieto described this belief as creating a two link chain of causation. The belief was based on an invitation from the Social Club, which in turn was being encouraged to undertake its sponsorship by the ANAO, which ultimately meant that the ANAO should accept liability for Ms Prieto’s injury. Counsel argued that the belief was not unreasonable. His argument was that in Ms Prieto’s eyes this was just another work-sponsored event and that she had no need to doubt this was the situation nor to check the position. In other words, the fact that the Social Club had paid for, encouraged, and approved the event, reasonably meant, given the closeness of the relationship between the ANAO and its Social Club, that the ANAO had sponsored the event.
99. The Tribunal does not accept this reasoning. Although the Tribunal has no reason to doubt that Ms Prieto held the belief that she was playing for the ANAO in the tournament, that belief is insufficient on its own. There must be objective facts which underpin that belief if it is to be determinative for the purposes of compensation legislation.
100. The contrary facts referred to earlier, deny the reasonableness of the belief. In addition, the fact that the activity in which Ms Prieto participated took place on a Sunday, outside her normal working hours, and outside her usual workplace also cast doubt on this being an ANAO event on an objective reading of the facts. There was also evidence in the Act and the ANAO Health and Safety Management Arrangements in force at the time Ms Prieto was injured which should have alerted Ms Prieto to the risk she was taking.
101. At one level it appears that the ANAO ‘encouraged or permitted’ the activity, given its publicising the event as an ANAO event in its newsletter, and management’s awareness that the occasion could be used to publicise the ANAO, and for networking by its graduates and other ANAO members of the team. However, the publicisation of the tournament was after the event, and these indicators are counterbalanced by the information available in its policies about sponsorship, in specific emails designating the social club as the body responsible, and in its information in the Induction Manual, clearly signalling that the Social Club was a body separate from the ANAO. There is also no evidence that the ANAO ‘induced’ or ‘authorised’ Ms Prieto to play in the team.
102. On balance the Tribunal finds, given the totality of the evidence, that Ms Prieto’s involvement in the tournament was not ‘authorised, encouraged or permitted’ or ‘induced or encouraged’ by the ANAO. On that basis she was not involved in an activity which was impliedly or expressly sanctioned by her employer, nor was it one which had been undertaken at ANAO’s direction or request. For that reason, she was not involved in an activity which could be described as ‘arising out of, or in the course of employment’ and she has, therefore, not suffered an ‘injury’ for the purposes of section 5A, and Comcare is not liable to compensate her for her injury under section 14.
103. The usual order as to costs applies.
.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ................................[sgd]................................................
AssociateDate/s of Hearing 21 May 2010
Date of Decision 22 July 2010
Counsel for the Applicant Alan Anforth
Solicitor for the Applicant Geoff Wilson
Counsel for the Respondent Andrew Berger
Solicitor for the Respondent Shelley Mulherin
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