Re Green and Comcare

[2011] AATA 639

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2010/4702

GENERAL ADMINISTRATIVE DIVISION		)
Re		Fiona Green

Applicant

And Comcare

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date14 September 2011

PlaceCanberra

Decision The decision under review is affirmed.

...................[sgd]...........................

Professor RM Creyke, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – liability for injury sustained just outside entrance to employer’s building during lunch break – whether in the course of employment – whether at place of work - ordinary recess - application of Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) - decision under review affirmed

Acts Interpretation Act 1901 (Cth) s 15AB

Fair Work Act 2009 (Cth)

Fair Work Regulations 2009 (Cth)

Occupational Health and Safety Act 1991 (Cth) s 16

Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth)

Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5A, 6, 14

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

Brennan v Comcare (1994) 50 FCR 555

Comcare v O’Dea (1997) 150 ALR 318

Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Inspector Gjaltema v Errington and MJ Baker Constructions [2010] NSWIRComm 37

Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273

Kennedy v Telstra Corporation (1995) 61 FCR 160

Re Barnard and Australian Postal Corporation [2008] AATA 507

Re Chapman and Comcare (2009) 109 ALD 699

Re Maynard and Comcare (2000) 63 ALD 315

Re Perera and Comcare [2009] AATA 499

Re Reardon and Comcare [2010] AATA 110

Telstra Corporation Ltd v Smith (2009) 177 FCR 577

South Australia Co v Richardson (1915) 20 CLR 181.

Staines v Commonwealth [1990] FCA 512

Workcover Authority of NSW (Inspector Belley) v Freight Rail Corp (2002) 117 IR 99

WorkCover Authority of NSW (Inspector Campbell) v Hitchcock (2004) 135 IR 377

WorkCover Authority (Inspector Charles) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451

WorkCover Authority of NSW (Insp Farrell) v Schrader (2002) 112 IR 284

WorkCover Authority of NSW (Insp Campbell) v Hitchcock (2004) 135 IR 377

REASONS FOR DECISION

14 September 2011 Professor RM Creyke, Senior Member   

1.Ms Fiona Green sustained an injury on 5 March 2010 when she slipped on the tiles in the vicinity of the office of her employer, the Department of Infrastructure, Transport, Regional Development and Local Government, now called the Department of Infrastructure and Transport (Agency), in her lunch break.

2.Ms Green lodged a claim for compensation for ‘soft tissue damage muscle tear – shoulders/rotator cuff’ on 22 March 2010.

3.On 11 June 2010 Comcare denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for injuries described as ‘tear of cartilage or meniscus of knee (right); ankle sprain (right); and contusion of knee and lower leg (left)’. That decision was affirmed on review on 7 October 2010. On 1 November 2010 Ms Green sought review by the Tribunal.

4.The matter was heard in Canberra on 22 August 2011.

Legislation

5.The relevant provisions of the Act include section 14, which provides that ‘Subject to this part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment’.

6.Section 5A of the Act defines an ‘injury’ to mean, as relevant, ‘(b) an injury … suffered by an employee, being a physical … injury arising out of, or in the course of, the employee’s employment’. 

7.Section 6 of the Act provides a non-exhaustive definition of what is an ‘injury arising out of or in the course of employment’.  The relevant provisions are:

(1)  Without limiting the circumstances 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: …

(b)  while the employee was at the employee's place of work, including during an ordinary recess, for the purposes of that employment;

(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 the licensee …

(3)  Subsection (1) does not apply where an employee sustains an injury:

(a)  while at a place referred to in that subsection; or

(b)  during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

8.Other relevant concepts are defined in section 4 of the Act. Place of work, ‘in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment. ‘Impairment’ is defined to mean ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’.

Issues

9.The overarching issue is whether the injuries suffered by Ms Green due to her fall on 5 March 2010 ‘arose out of or in the course of’ her employment such that liability should be accepted under section 14 of the Act’.

10.Underpinning that issue are the questions of whether the incident in which Ms Green was injured occurred ‘in the course of her employment’, as that expression has been defined, and as a subset of that issue, whether Ms Green was at her ‘place of employment’ at the time of her injury.

Background

11.The parties have agreed the following facts:

·For the period relevant to the application to the Tribunal and the claim under the Act, Ms Green was an employee of the Department of Infrastructure and Transport (the employer).

·The employer’s business address is 111 Alinga Street, Canberra City.  Ms Green’s usual place of employment was at this address.

·On Friday, 5 March 2010, at around 1.45 pm while taking a lunch break, Ms Green fell and suffered physical injuries.

·Ms Green’s terms and conditions of employment entitled her to take a lunch break.

·As Ms Green was walking away from the front doors of the building at 111 Alinga Street, and before she reached the red cobblestones of Alinga Street, she slipped and fell. The Tribunal notes that it was common ground that it had been raining.

·The point at which the slip and fall occurred was an area over which renovations had been carried out by the employer under agreement with the owner of the land, even though it was a public place.

·Ms Green’s hands were stinging and wet; her left knee was grazed.  She was rubbing her whole right leg as she remained on the ground.

·Ms Green was assisted by an off duty paramedic and his wife and mother who were passing and stopped to help.  No details were taken as Ms Green did not think she would need them.  The paramedic got Ms Green up off the tiled ground and helped her to lean against one of the columns in her immediate vicinity.

·Fellow staff member Julie Perceval saw Ms Green with the paramedic after she was on her feet.  Julie helped Ms Green return to her desk on level 6 of the building at 111 Alinga Street.

12.The following facts are also relevant.

13.The owner and landlord of the building at 111 Alinga Street is Multiplex Property Funds Management Limited, also known as Brookfield Australia Funds Management Ltd (Multiplex). The Agency is a tenant of the building but does not occupy the total space of the building at 111 Alinga Street, Canberra City. 

14.The Agency leases a small area and sub-lets other areas on the ground floor and also leases areas on the mezzanine floor, and the whole of the second to the sixth floors of the building.   Common areas include the atrium area on the ground floor, the lifts and the stairwells.  There is a security point on the ground floor for employees of the Agency.  Beyond that security point, the public are not permitted to enter without permission.  There is a ‘break out’ room in the Agency premises for use by employees during breaks. On the ground floor there are a number of other tenants, including a café and a travel agency. 

15.The area in which the fall occurred is located under the overhang of the first floor of the building.  There are colonnades supporting the overhang.  However, the area beneath the overhang is open to the public at all times, being adjacent to the bus interchange, and is used by members of the public as an overflow area for the bus interchange at all times of day and night.

16.The area in which she fell was not a place Ms Green was required to attend for the purposes of carrying out the duties of her employment.  Ms Green was employed in an administrative role, as a training co-ordinator.  At the time of the incident she was acting as an APS6 (Australian Public Service level 6).  Her substantive position is at the APS5 level.

17.There is no requirement, expectation or direction for Ms Green to attend any particular place to eat her lunch or to take her lunch break at any particular time.  Nor is there any clause of the Department of Infrastructure, Transport, Regional Development and Local Government Enterprise Agreement 2009-2011 (Enterprise Agreement) relating to employment during the lunch hour break.

18.The Enterprise Agreement provides that:

[The] ‘usual place of work’, for an employee, means the place where the employee ordinarily performs duty, or for an employee who does not ordinarily perform his or her duties at a single place, the place where the employee is ordinarily required to report for duty.

In Ms Green’s case, her usual place of work was at 111 Alinga Street, Canberra City.

19.The Enterprise Agreement also provides that ‘Standard Working Hours’ are 7.5 hours per day (Monday to Friday) within the bandwidth of 7.00am to 7.00pm (Clause I (1.1)). Where an employee is absent from duty without authorisation for a period of longer than 30 minutes during the day, that period is to be without pay (Clause I (2.1)). The Enterprise Agreement also provides that an employee ‘must break for at least 30 minutes after five hours continuous work’ (Clause I (3.2)).

20.Ms Green’s ‘Plan on a Page’ for the period 1 July 2009 to 30 June 2010 which sets out her ‘Key Deliverables’ for the period and the related ‘Performance Measures’ did not refer to any duties which would require her to take a lunch break, and it did not refer to where she should take her lunch break, or the location at which she was required to work.

21.It was conceded that in 2007 to 2008 the Agency had been involved in building works upgrading the tiled colonnade area, the area of the incident, as part of an upgrade to the perimeters of the building at 111 Alinga Street. Under an agreement signed 10 September 2007 the works were carried out by the Agency, but the landlord paid a proportion of the costs.

22.In June 2010, the building managers for Multiplex, erected signs in the colonnade area saying the area is ‘slippery when wet’.  The evidence was that the building managers were responsible for rectifying any maintenance issues in and adjacent to the building. 

Counsel’s arguments

23.Counsel for Ms Green had alternative arguments:

·That her injury occurred ‘in the course of her employment’ in accordance with the principle of Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, (Hatzimanolis) without regard to the need to decide whether it also occurred at the place of work;

·That the injury occurred at her ‘place of work’ within the meaning of section 6(1)(b) of the Act.

24.Counsel for Ms Green contended that it is a logical fallacy to treat the two tests as synonymous.  There is overlap between the two and being at the ‘place of work’ is a subset of the broader concept of being ‘in the course of employment’.

25.He also contended that section 6 of the Act describing what is an ‘injury arising out of or in the course of employment’ is not intended to be exhaustive and the specific matters referred to in that section simply enumerated matters about which there might be some doubt.

26.The more detailed arguments by both counsel in relation to the two key issues are considered below. Counsel for Ms Green contended as follows.

27.‘In the course of employment’

·Lunch breaks are a term of the employment contract embodied in the Enterprise Agreement relating to employees of the Agency.

·The lunch break is an activity that Ms Green was ‘expected, authorised and encouraged’ to undertake by the Agency in order for the Agency to comply with its lawful obligations and for Occupation Health and Safety (OH&S) reasons.

·The lunch break occurs in one overall period of work, namely, the working day, under the Enterprise Agreement.

·During the working day Ms Green was expected and required to be at her place of employment from the commencement of her working day until the end of her working day (the Hatzimanolis principle).

·Ms Green was ‘in the course of her employment’ for the whole of an overall period of employment in that she was required to be at her place of employment. This included recess for a lunch break and her lunch break was an express right, induced by the contract of employment and the terms of the Enterprise Agreement.

·A lawfully required, and employer authorised and encouraged lunch break during one Hatzimanolis period is activity that is within ‘the course of employment’ for the purposes of section 5A of the Act, except in the case of gross misconduct.

·Recesses of this kind are recognised in section 6(1)(b) of the Act.

Ms Green should succeed on this ground alone.

28.‘Place of work’

·The ‘place of work’ as defined in section 4(1) of the Act is not limited to Ms Green’s personal work station in a building. It is defined to be ‘any place’ that she is required to attend for the purpose of carrying out the duties of her employment. This is itself a recognition of the Hatzimanolis principle.

·The ‘place of work’ is not limited to a single location.

·The ‘place of work’ can be a place solely owned and tightly controlled by the employer, or it can be in a public place.  The definition of ‘place of work’ and the Hatzimanolis principle impose no criteria at all as to whether the place of work is a public place or not. 

·Because the definition of a ‘place of work’ carries no connotation at all as to whether the place is a public or private place, issues of employer ‘control’ of the place of the injury are irrelevant in determining whether a location is a ‘place of work’ or not.

·The idea that the ‘place of work’ is limited to the site where the employee does some practical activity on behalf of the employer would exclude, for example, an employee injured while taking a toilet break because the toilet is not a site of productive work activity.

·The ‘place of work’ includes any place that the employee is required to attend for the purpose of the employment, for example, the toilet during the working day, and the lifts and stairs that are the only means of accessing and departing the building.

·The same argument extends to the foyers and entrances to the employer’s building.

·Whether the employer has ‘control’ over the entrances and exits from their building introduces an element of fault or blame that has no place in the Act.  Once the employer chooses the work site (or in this case the building it wishes to lease) and then directs the employer to attend that site, the provisions of the Act are engaged because the employee is where she is required to be for the purposes of her employment.

·In any event it is not true that a tenant of a building with a licence to use the common areas such as lifts, and toilets has no ‘control’ over these areas.  The employer has the power to enforce the terms of its contractual licence which either explicitly or implicitly extends to the safe use of the facilities.

·In the present case, the employer retained a specific licence of some description to occupy and renovate the colonnade area. This renovation was explicitly for the purposes of the employer’s business. The injury occurred during the period of this specific licence on the site of the employer’s renovations. Thus the site of the injury was in fact under the ‘control’ of the employer at the time of the injury.  The fact that the employer permitted public access to the colonnade area is irrelevant.

29.Comcare’s contentions were as follows.

30.‘In the course of employment’

·The location of Ms Green’s fall occurred in an area outside the control of her employer.

·The employer did not occupy the total space of the building at 111 Alinga Street, Canberra City.

·The location of Ms Green’s fall is open to the public at all times and is utilised by the public for purposes other than entry to the building within which Ms Green works. The location of Ms Green’s fall is immediately adjacent to the bus interchange and is used by members of the public as an overflow area for the bus interchange.

·Ms Green’s fall did not ‘arise out of, or in the course of, her employment’.

·The test in Hatzimanolis for ‘in the course of employment’ is that an interval or interlude within an overall period or episode of work occurs in the course of employment if, expressly or impliedly, the employer has encouraged or induced the employee to spend that interval at a particular place or in a particular way.

·In deciding whether an injury occurred ‘in the course of employment’, regard must always be had to the general nature, terms and circumstances of employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’.[1]

·In Ms Green’s case, her employer neither expressly nor impliedly encouraged or induced her to spend her lunchtime on the tiled colonnade area outside the employer’s leased premises located within 111 Alinga Street.

·The general nature, terms and circumstances of Ms Green’s employment did not require or encourage her, at the time and date of her injuries, to exit the employer’s leased premises to take lunch.

·In addition, such factors did not involve her undertaking any duties in the colonnade area. 

·Taking all relevant factors into account, it cannot reasonably be concluded the Ms Green’s injuries ‘arose out of, or in the course of, her employment’.

[1] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 481.

31.‘Place of work’

·Ms Green was not at her ‘place of work’ when she was injured. The area where she slipped and fell was not a place that she was required to attend for the purposes of carrying out the duties of her employment. 

·The area was not part of the employer’s leased premises. The area was open to unrestricted public access, 24 hours a day, seven days a week.

·The circumstances of Ms Green’s claim fall precisely within the class of injury that Parliament intended to exclude from compensation by the amendments brought into force by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth).

·Had Ms Green decided to take lunch in a break out area with the employer’s leased premises the situation would be different.

·However, since Ms Green was not at her ‘place of work’ at the time of her injury, applying the language of the Act as Parliament intended, her claim cannot succeed.

Consideration

32.The Tribunal is satisfied that the agreed facts set out in paragraph 9 of these reasons are an accurate record of the facts which are relevant for the purposes of this matter. In addition, the Tribunal is satisfied that the relevant office of the Agency was located at 111 Alinga Street, Canberra City and that taking a lunch break occurs within an overall period of the work. There is also no dispute that Ms Green was an ‘employee’ of the Agency at the relevant time and that she suffered an injury on 5 March 2010 when she fell in the tiled colonnade area immediately outside an exit door of the Agency’s premises. 

33.The outcome of these proceedings depends on the findings as to the legal principles which apply to the agreed facts.

34.Section 14 of the Act provides that Comcare is liable for an injury of an employee if the injury results in incapacity for work, or impairment. There is no dispute that Ms Green suffered an injury in her fall on 5 March 2010, described as ‘tear of cartilage or meniscus of knee (right)’  and that this amounts to an ‘impairment’ namely, damage to her knees, ankles, shoulders and neck (section 4(1) of the Act). Section 5A of the Act provides, as relevant, that a physical injury is only compensable if it arose ‘in the course of, the employee’s employment’.

35.Section 6 provides a non-exhaustive description of matters which are considered to be ‘in the course of an employee’s employment’. In particular section 6(1)(b) states that the expression ‘in the course of employment’ extends to cover an injury ‘while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment’. 

36.‘Place of work’ is defined to include ‘any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment’ (section 4(1) of the Act).

37.The terms of section 6(1)(b) were amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). Prior to that amendment, section 6(1)(b) had provided that injuries which were compensable included an injury sustained:

while the employee: (i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment. (emphasis added)

38.Parliament’s removal of liability for an injury sustained while the employee was ‘temporarily absent [from their place of work]… during an ordinary recess’ indicates an intention not to impose liability on Comcare for injuries during an ‘ordinary recess’. That intention is supported by the Explanatory Memorandum to the 2007 Bill which stated that:

The amendment will provide that injuries incurred while an employee was temporarily absent from the workplace during an ordinary recess in employment will generally not be injuries arising out of, or in the course of employment. (at p 6)

39.Reference to the Explanatory Memorandum is permissible to ‘confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision’.[2]

[2] Acts Interpretation Act 1901 (Cth) s 15AB(1)(a).

40.The ordinary meaning of section 6(1)(b), as amended, indicates that Parliament intended to exclude liability for injuries incurred during an ‘ordinary recess’ unless the injury was incurred on the employer’s premises, or fell within the other provisions of section 6. Alternative arguments will be considered to confirm this opinion.

41.The expression ‘ordinary recess’ is not defined. Tamberlin J in Kennedy v Telstra Corporation, referred to the reviewable decision in which it had been found that the ordinary meaning of the expression includes: ‘a break of temporary duration with an intent to resume the broken activity whatever it may be, within a reasonably short time’.[3]

[3] Kennedy v Telstra Corporation (1995) 61 FCR 160 at 164.

42.In Kennedy, a break during an overall interval of work to stay in a town about 50 kilometres away did not occur during an ‘ordinary recess’ since it could not be concluded within a reasonably short time. By implication the finding indicates support for the description of an ‘ordinary recess’ adopted in the reviewable decision.

43.This view of the meaning of the expression was adopted by Deputy President Forgie in Re Maynard and Comcare[4] where, after an analysis of the existing cases, she said that ‘throughout all of these decisions … is the recurring theme that an ordinary recess is really no more than a temporary interruption to a period of employment’ (at 319).

[4] Re Maynard and Comcare (2000) 63 ALD 315.

44.The Enterprise Agreement which applied at the time of Ms Green’s injury provides in ‘Section I Working Hours’ that the standard hours of work is 7.5 hours per day within the bandwidth of 7.00am to 7.00pm.  The bandwidth assumes a one hour lunch  (clauses I (1.1), I (2.2)). The need for the employee, for OH&S reasons, to avoid working throughout the working day is reflected in the requirement that the employee take a break for at least 30 minutes after five hours continuous work (clause I (3.2)).

45.There is no question on the facts that Ms Green had left the premises on the relevant occasion to take a lunch break, nor that she was entitled under the Enterprise Agreement to do so. Whether that break is a ‘right’ is an issue that requires further exploration.

46.Counsel for Ms Green contended that Ms Green had a right to use that lunch break for the purpose of obtaining lunch and she was entitled to take that break outside the office. That right, it was argued, was expressly required under the Enterprise Agreement and to take the break outside the office was accepted practice. Hence, a lunch break outside of the office could be said to have been ‘expected and encouraged’ by the employer within the findings made by the High Court in Hatzimanolis. Counsel argued that the right also arose under her employment contract, and the obligations on an employer under the Occupational Health and Safety Act 1991 (Cth)(OH&S Act).

47.Counsel for Comcare did not accept these arguments in light of the legislative history of section 6(1)(b).

48.The second limb of the argument by counsel for Ms Green was that there was an expectation or encouragement by the employer to take that break outside the Agency.  The Tribunal accepts that under the Enterprise Agreement there is a right to take a break after five hours continuous work. However, no right to take a break outside of the workplace is specifically provided for in the Enterprise Agreement. The issue is whether such a right arises at common law, either under Ms Green’s contract of service or consistent with the general principles in Hatzimanolis.  Alternatively, there are questions as to whether the right arises under the OH&S Act and whether any such right has been foreclosed by the terms of the Act, specifically, section 6(1)(b). 

49.The Tribunal was not provided with a copy of the specific contract of employment for Ms Green. However, evidence from a Business Manager, Ms Suzannah Mackey, and a person employed in the same business unit as Ms Green, was that Ms Green’s ‘work station’ was at 111 Alinga Street, Canberra City.  Ms Mackey noted, however, that ‘there was and is no requirement, expectation or direction for the Applicant to attend any particular place to eat her lunch or to take her lunch break at any particular time’. The timing and the location of the break was at the discretion of the employee. Ms Mackey conceded there was a requirement to take a 30 minute break after working for any five hour period, but there was no indication of where or how that ‘right’ was to be exercised.

50.This evidence satisfies the Tribunal that while a right exists to take at least a half hour break under the Enterprise Agreement after five hours of work, the employee has a discretion as to when they take that break and where they go during that break. An employee whose normal workplace was at 111 Alinga Street can lunch in the ‘break out’ room within the leased premises of the Agency, within the cafe on the ground floor of the premises, or away from the building.

51.In other words, there is no right under the Enterprise Agreement relating to the location for the break. Nonetheless, the Tribunal has considered other avenues under which such a right, or at least an expectation or encouragement of taking a break outside the employer’s premises, might exist.

OH&S legislation and Fair Work legislation

52.The OH&S Act sets out employers’ duties of care in relation to their employees. The Tribunal has examined the Act and has found no provision imposing an obligation on the employer to provide a safe system of work outside the workplace during a lunch break.  Accordingly, in the absence of such an obligation, there is no correlative right in an employee in relation to activity during breaks from work. Nor does such an obligation or right arise under the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth), and the Occuational Health and Safety (Safety Standards) Regulations 1994 (Cth).

53.Equally, the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth) contain no such obligation or right.

54.However, the Tribunal notes that there is one relevant obligation under the OH&S Act. Section 16(2)(b)(ii) provides that an employer must take all reasonably practicable steps to ‘provide and maintain a means of access to, and egress from the workplace that is safe for the employees’. The statutory duty imposed on the employer by this provision does create a correlative right in an employee. That right is to a safe system of work when accessing or leaving the workplace. However, the Tribunal notes that the OH&S Act is silent as to any obligations on the employer or rights of the employee in relation to injuries during breaks. In those circumstances, the explicit consideration in the Act of an employer’s responsibilities in relation to ordinary recesses indicates that it is the Act, rather than the OH&S Act, which should take precedence in relation to facts such as those involved in this case.

55.No cases have been discovered which explore what is covered by the expression ‘access to and egress from the workplace’ in the Commonwealth and related industrial relations legislation.[5] Rather the cases relating to section 16 in the OH&S Act (Cth) and on related State and Territory equivalent legislation were focused on what is meant by ‘workplace’ or ‘place of work’ under industrial relations legislation,[6] or they concerned cases relying on common law negligence principles.[7] The possibility of any liability arising in negligence at common law was not the subject of this application. Accordingly the issue of employer’s obligations in relation to access to and egress from the workplace is analysed under the discussion of ‘place of work’ later in these reasons

[5] A search of annotations to section 16 of the OH&S Act in LexisNexis, Laws of Australia, and Halsbury’s Laws of Australia employment title.  Halsbury’s covered the OH&S legislation in the Commonwealth, South Australia, Tasmania and Western Australia. There are also cases discussing access and egress in relation to the New South Wales equivalent legislation, but the discussion arises under ‘place of work’. 

[6] Eg Telstra Corporation Ltd v Smith (2009) 177 FCR 577; WorkCover Authority of NSW (Inspector Campbell) v Hitchcock (2004) 135 IR 377; WorkCover Authority (Inspector Charles) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451; WorkCover Authority of NSW (Inspector Farrell) v Schrader (2002) 112 IR 284 at [63]; Inspector Gjaltema v Errington and MJ Baker Constructions [2010] NSWIRComm 37; WorkCover Authority of NSW (Inspector Campbell) v Hitchcock (2004) 135 IR 377.

[7] Eg Staines v Commonwealth [1990] FCA 512; Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273; South Australia Co v Richardson (1915) 20 CLR 181.

Hatzimanolis and ‘during the course of employment’

56.Counsel for Ms Green submitted that under the test in Hatzimanolis it is accepted that an injury sustained in an ‘interval’ between work, including an ordinary recess, is compensable as an injury arising ‘in the course of employment’ provided the employer has ‘required, authorised or expected’ the activity which led to the injury, absent any gross misconduct on the part of the employee.

57.As the majority judgment found:

Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period.  Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home.[8]

[8] Id at 483 per Mason CJ, Deane, Dawson and McHugh JJ; Toohey J agreeing in the outcome in a separate judgment.

58.Later in the judgment, the majority said:

… an interval or interlude in an overall period or episode of work 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.  … [A]bsent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. 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.[9]

[9] Id at 484 per majority.

59.Earlier, in summarising the preceding cases, the majority had said that their ‘striking feature’ was that ‘in almost all of them the employer has authorized, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way’.[10]

[10] Id at 482 per majority.

60.The argument by counsel for Ms Green was that these passages indicate that since her injury occurred during an ‘interval’ in an overall period of work and her actions on that occasion could not be described as gross misconduct, the principles taken from that judgment would permit her recovery of compensation.

61.To so argue is to neglect the qualifying words such as ‘more readily’ and ‘ordinarily’ in the passages quoted, and the requirement that the employer must have ‘induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way’.  It also neglects to take account of the deliberate legislative changes.

62.As to the second qualification in the majority’s decision in Hatzimanolis, namely, that the employer must expressly or impliedly have induced or encouraged the activity which led to the injury, counsel for Ms Green argued that since it is the common practice for employees like Ms Green to go outside their workplace to obtain lunch, the employer has ‘impliedly’ encouraged such conduct.

63.Whether the employer gave an implicit or express sanction to an employee leaving the workplace to have lunch, the adverbs ‘expressly or impliedly’ attach to the verbs ‘induced or encouraged’ and relate to particular activities. The implied approval is not for activity at large.  Gross misconduct is expressly excluded.  But so are other activities.

64.The Tribunal concedes that principles expressed in decisions in cases are not to be treated as if the words used are legislative prescriptions.[11] Nonetheless, where, as here, the words appear to be chosen with particular care, the Tribunal should note the effect of the changes.

[11] Brennan v Comcare (1994) 50 FCR 555 at 572 per Gummow J. See also Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390 at 409 per Windeyer J.

65.In stating the principle, the majority in Hatzimanolis did not adopt the earlier formulation of the test for the employer’s sanctioning of the conduct. Instead of ‘authorized, encouraged or permitted’, which was the summary of the preceding cases referred to in their reasons, the majority opted instead for ‘induced or encouraged’. The choice indicates an intention to limit the activities to be covered during an interval to those for which there had been, expressly or by implication, active inducement or encouragement by the employer.

66.That choice was consistent with the facts in Hatzimanolis. In that case the employer had told the employees that during their three months’ work at Mt Newman they should take the chance to visit the areas in the region.  On the day in question the employer had organised a trip to Wittenoom Gorge ‘for anybody who cared to come along’ and offered use of the employer’s vehicle. In other words, exploring the Kimberleys, a remote but scenically interesting area, while on location there may have been an inducement by the employer for employees contemplating doing work in the region.  On the day in question there was also explicit encouragement to attend the particular outing.

67.The dictionary meaning of the words ‘induced or encouraged’ confirm that reasoning.  To induce is ‘1. To lead or move by persuasion or influence, as to some action’.[12] Equally to encourage is ‘2. To stimulate by assistance, approval, etc’.[13]

[12] Macquarie Concise Dictionary (5^th ed, 2009) 631.

[13] Id at 405.

68.In saying that Ms Green’s employer must have impliedly sanctioned her going out for lunch, the employer’s tacit acceptance of that practice does not meet the active encouragement envisaged by the majority in Hatzimanolis. That argument cannot be sustained.

Legislative change

69.In addition, the legislative change in 2007 occurred subsequent to Hatzimanolis and the cases on which the majority relied in refashioning the principles. The Parliament is taken to have been aware of the pre-existing case law when it makes legislative change.[14] This is particularly the case for frequently amended legislation, or where the legislation is administered by a specialist Tribunal.[15] The intentional removal from section 6(1)(b) of the words while ‘temporarily absent from that place during an ordinary recess in that employment’ signalled an intention that Comcare should no longer be obliged to compensate for injuries during an ‘ordinary recess’ – the statutory equivalent break to an ‘interval or interlude’ in the Hatzimanolis judgment.

[14] Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 347 per McHugh J.

[15] Workcover Authority of NSW (Inspector Belley) v Freight Rail Corp (2002) 117 IR 99 at 119 per Haylen J.

70.The amendments instead confined compensable injuries during an ‘ordinary recess’ to those which arise ‘at the employee’s place of work’ or are otherwise associated with the employee’s employment. This excludes injuries which occur outside the place of work and must be taken specifically to have overturned the effect of Hatzimanolis in circumstances such as an ‘ordinary recess’.

71.That conclusion is supported because there are specific exceptions in section 6 which permit compensation for injuries which occur outside the workplace. In other words, although not exhaustive, the activities included do give an indication of the kinds of circumstances in which injuries outside the workplace by an employee are compensable.

72.These activities are those ‘associated with the employee’s employment’, or at the direction or request of the employee; while absent during a study break or travelling between work and the location of the education institution; while travelling for medical or rehabilitation reasons for work-related injuries, or to receive a compensation payment; during travel from work to obtain a medical certificate, obtain medical treatment or rehabilitation for an injury, or for a medical examination or rehabilitation assessment under the Act (section 6(1)(c) – (g)). Ms Green’s claim does not fall within any of the exceptions.

73.Although the list is non-exhaustive, the enumerated circumstances in section 6(1) have as a common theme that they are either sanctioned by the employer, such as study breaks; required by an employer such as complying with a direction, or obtaining medical certificates, or fitness for work assessments; or are travel for medical or rehabilitation reasons associated with a workplace injury. In other words, all are quite closely associated with matters within the workplace. None relates to an activity which is at the discretion of the employee such as how the person spends their lunch break.

74.The specific exclusion of compensation during an ordinary recess, unless it occurred on the employer’s premises, falls outside the core of meaning in the specific examples and confirms the legislative exclusion of compensation for injury during an ordinary recess. So unless, Ms Green’s injuries can be characterised as occurring at her ‘place of work’ she cannot succeed.

‘Place of work’

75.‘Place of work’ is defined broadly in the Act as ‘any place at which the employee is required to attend for the purpose of carrying out the duties of … employment’.[16] The description is purposive and the ‘place’ is required to be somewhere in which an employee is present for work purposes. Ms Mackey’s evidence was that ‘There is and was no requirement for anyone in my section to carry out the duties of their employment on the tiled colonnade area’. This statement must be evaluated in the context of the meaning of ‘place of work’.

[16] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘place of work’.

76.The issue has arisen in several cases since the amendments to the Act in 2007.  Earlier cases too, to the extent that they are relevant, are also considered. The case law is not, however, determinative since it is generally conceded that whether a person is at their ‘place of work’ is a question of fact in each case.[17] The significant fact in this case is the location of the injury in the tiled colonnade area immediately outside the building at 111 Alinga Street. The area is open to the public at all times, but is located underneath an overhang from the first floor. As counsel for Ms Green expressed it, the injury occurred within the ‘footprint’ of the building. The issue is whether Ms Green’s  ‘place of work’ extends to this area.

[17] Comcare v O’Dea (1997) 150 ALR 318 at 325; Re Reardon and Comcare [2010] AATA 110 at [31]; Re Barnard and Australian Postal Corporation [2008] AATA 507 at [55]; Re Perera and Comcare [2009] AATA 499 at [13].

77.The Tribunal notes that unlike the description of ‘place of residence’, in section 6(1A) of the current Act, there is no reference to the notion of a ‘boundary’ in the statutory description of ‘place of work’. Although Northrop J considered that for consistency the ‘boundary’ concept should apply to both,[18] that view was not accepted in Re Barnard andAustralian Postal Corporation.[19] The Tribunal agrees with Senior Member Penglis in Re Barnard that if Parliament had wished to include the notion of a boundary in the definition of ‘place of work’ it could have done so and its omission was therefore intentional.

[18] Comcare v O’Dea (1997) 150 ALR 318 at 326.

[19] Re Barnard and Australian Postal Corporation [2008] AATA 507 at [50].

78.Nonetheless, that does not mean that the issue of the geographical boundary of the building in which Ms Green works is irrelevant.[20] Common sense supports the relevance of the boundary issue for a claim arising in relation to an injury apparently outside the workplace.

[20] Id at [52].

79.Northrop J in Comcare v O’Dea found that ‘In normal understanding the place of work is the place at which the employee attends for work as an employee. It is not to be limited to the office or particular workshop where the employee performs duties’.[21] By parity of reasoning, it is the entire area of the Agency’s premises  at 111 Alinga Street, not just the area of Ms Green’s workstation on a particular floor of the building, which is her place of work. 

[21] Comcare v O’Dea (1997) 150 ALR 318 at 326.

80.There are a range of factors which may be relevant to the identification in a specific instance of whether a person’s injury occurred in a ‘place of work’. Relevant factors which have been identified in the cases include whether:

·the injury occurred at a point outside the building where there was unrestricted public access;

·there were a number of different tenants in the building;

·the premises leased by the Agency were in part only of the premises;

·the Agency had any control of the area in which the employee was injured; and

·there was evidence that any employee carried out any of their duties as employees in the area in which was injured. ^[22]

[22] Re Perera and Comcare [2009] AATA 499 at [15]; Re Barnard and Australian Postal Corporation [2008] AATA 507 at [61].

81.In Ms Green’s case, the injury occurred in a place where there was unrestricted public access and there were a number of different tenants in the building. While the Agency was the principal lessee of the building it still leased only parts of it, and there was no evidence that employees carried out their duties in the colonnade area. Leaving aside the more problematic issue of control, these factors, on balance, would suggest that Ms Green was not at her ‘place of work’ at the place at which her injury occurred. The issue of whether the employer had control over the area is dealt with as a separate issue below.

82.This view is supported by comparable facts and outcomes in the relevant case law.  In Re Chapman and Comcare[23] a Centrelink employee was injured during a recess while descending a flight of stairs in a shopping centre leading to Level 2.  Ms Chapman’s office was on part of Level 9 of the shopping centre. The Tribunal found that Ms Chapman was not at her ‘place of work’ for the purposes of section 6(1)(b) of the current Act. Her duties were to enter data on a computer and these needed to be performed at her desk in the office. In other words, ‘place of work’ was confined to the actual areas leased by the employer and those in which Ms Chapman conducted the duties of her employment.

[23] Re Chapman and Comcare (2009) 109 ALD 699

83.Applying this reasoning to Ms Green, her training duties were required to be performed either at her desk or a training centre within the Agency’s leased premises, or in alternative premises in which as part of her work she was undertaking or coordinating training activities.  As Ms Mackey’s evidence indicated, she was not performing those duties in the area under the colonnade where she fell and was injured. She was also not present in the colonnade area on her way to conduct training somewhere outside her principal workplace.

84.In Re Perera and Comcare[24] the facts are similar to those in Ms Green’s case.  The area in which Mr Perera was injured was on land on which his workplace was situated, but the particular area in which the injury occurred was open to the public.  Specifically the area ‘was immediately in front of the shopfronts which formed the façade of the ground floor of the building and underneath the overhang of the first floor’.[25] The entrance was set back a few meters from the shopfronts so that as he approached the door Mr Perera was walking along a short passageway. Mr Perera worked in the offices of his employer on the fifth floor. In finding that Mr Perera was not in his ‘place of work’ for the purposes of section 6(1)(b) of the current Act, the Tribunal applied the factors listed at paragraph 80.

[24] Re Perera and Comcare [2009] AATA 499.

[25] Id at [6].

85.In Re Barnard and Australian Postal Corporation Ms Barnard slipped and fell on steps leading to the footpath, after she had exited the building in which she worked. She had walked across an area behind the building, a distance of 14.4 metres between the exit and the top of the steps leading to the footpath. The site of the fall was outside the office area constructed on the land, but in an area described in the lease as a ‘common area to which the employees had a non-exclusive right of access and egress’.[26] The Tribunal found she was not at her ‘place of work’.

[26] Re Barnard and Australian Postal Corporation [2008] AATA 507 at [35].

86.This example raises another issue in Ms Green’s case which needs exploration, namely, who owns and who leases the building at 111 Alinga St, Canberra City. This includes consideration of whether the ‘place of work’ should include not only the areas leased by the employer but also the ‘common areas’ identified under a leasehold agreement.

Who owns and who is the lessee of the building at 111 Alinga St, Canberra City and over what parts of the building?

87.Multiplex owns the building at 111 Alinga Street, Canberra City.  The Agency entered into a lease agreement of the building for a term of 11 years from 1 July 2006. In the lease agreement ‘Building’ is defined exhaustively to mean ‘the building and all improvements located on the Land’ (clause 1.1.1). The land is defined as Lots 21 and 22, Section 26, Canberra City.  On that land are ‘Premises’ described in Schedule 1 as comprising Tenancy 1 on Subleasing Plan (SLP) 2138, the whole of SLP 2140-2145, Areas G1, G2, and G3 on SLP 5915, Area M1 on SLP 60086 and Areas M2, M4 and G4 on an unspecified SLP. Within these areas, the ‘Premises’ are limited to the space between the ‘interior face of the walls, doors and windows’ and between ‘the surface of the floor to the underside of the … ceiling’.

88.Tiled areas are located in the colonnade outside the entrance to the lobby of the building and beneath the overhang from the first floor. Counsel for Comcare notes that the subleasing plans 2138 and 5915, indicate that the boundaries of the ‘Premises’ do not extend to the colonnade areas. Instead, the colonnade areas ‘form part of the “common areas” in the Lease’.

89.The head lease defines ‘common areas’ to mean only:

… those areas of the Land and Building provided for common use by the Tenant and other occupants of the Building or members of the public including walkways, pavements, docks, driveways, access and egress roads, the entrances, lobbies, corridors, passages, stairways, lifts, escalators, toilets, tearooms and washrooms in the Building

90.A finding that the colonnade area is only part of the ‘common areas’ and is not leased to the Agency is consistent with the definition of ‘premises’ and the Tribunal so finds.

91.As ‘Building’ is defined to mean the building and all the improvements located on the land, the colonnade area, however, forms part of the building. That finding is also supported by the terms of the lease agreement. That agreement noted that the landlord was to be responsible for ‘Upgrade Work’, defined to include work to ‘the external areas, car park and loading dock as identified in the Base Building Brief at Schedule 7’. The work was to be undertaken within 18 months of the signing of the leasehold agreement.

92.The landlord is obliged to keep the premises and its fittings in good and substantial repair, working order and condition (clause 19.1.1) and to remedy defects in the building (clause 19.2.1). In light of the definitions of ‘Premises’ and ‘Building’ this would extend to the tiled areas including of the colonnade. The tenant has a number of obligations as set out in the leasehold agreement. The only relevant obligation imposed on the tenant is to advise the landlord of any maintenance work needing to be done in the colonnade area. The finding that maintaining the colonnade area is the responsibility of the landlord, not the tenant, is consistent with the contract relating to the ‘Upgrade Works’ in the head lease.

93.There is an issue, however, arising from a deed of variation of the lease and release relating to the colonnade area which was entered into between the landlord and the tenant in 2007.  By inference, the landlord had not undertaken the upgrade works contracted for in the first 18 months of the original agreement.  Accordingly the tenant agreed to take on the task. The deed of variation noted that the tenant had organised the colonnade tiling works under an agreement signed on 10 September 2007 (September Agreement). 

94.The September Agreement stated that ‘In lieu of the Lessor performing the Works DOTARS [the Agency] has agreed to carry out the Works at its own cost’ (clause 2).  The ‘Works’ were those referred to in the Base Building Brief in Schedule 7 of the Lease and included the retiling of the colonnade area. The landlord was to reimburse the Agency, in part, for the work (paragraph 3 of the Agreement).

95.The September Agreement noted in clause 10 that ‘The Lessor retains ownership, and does not require the removal, of the completed Works at the expiry of the Lease’. In other words despite the Agency conducting the re-tiling, the ownership of the area was retained by the landlord. There was some dispute about the formal handover of the works, which the landlord and the Agency agreed was finally effected by 1 September 2010, that is, after Ms Green’s injury.

96.There is limited information as to who exercised control over the colonnade area between the time of the completion of the re-tiling and 1 September 2010.  The Agency maintains that it ceased to have any degree of control and responsibility over the colonnade area shortly after the tiling works were completed (in 2007 or 2008). The schedule of works indicated that the work was to be undertaken between April and June 2008. Assuming completion of the works in accordance with this schedule, this suggests that control over the area had reverted to the landlord at that time around mid 2008.

97.The Deed of Variation of the Lease and Release provided that the tenant was released and discharged from any actions, suits and demands against the landlord for the tiles not being fit for purpose, meeting Australian standards, or being slippery.  However, that release did not prevent the landlord bringing an action suit or claim against the tenant in response to an action suit or claim by a third party ‘(including the Tenant’s employees or agents) against the Landlord arising from any  … injury or other damage suffered by a third party … using the Colonnade tiles prior to the Handover Date’. (Clause 6). That suggests the Agency retained control until the handover date of 1 September 2010.

98.Other information is needed to settle this inconsistency. The evidence of Mr Lykke, at the time of Ms Green’s injury, director of Office Services at the Agency, was that ‘in June 2010, Brookfield Multiplex erected signs in the colonnade area to the effect that the area is “slippery when wet”’.  He also stated that in about July 2009, signage was erected at the instigation of the Agency’s OH&S Team to ban smoking near the building exit in the colonnade area. He said that ‘Before any signs could be erected, the Agency had to seek permission and approval from Brookfield Multiplex’.  He also noted that one of his duties was to inspect the colonnade area to inform Multiplex if the area needs any maintenance.  In that event, it was for the lessor to rectify the problem.

99.In light of this evidence, the Tribunal concludes that the tiled colonnade area is part of the ‘common areas’ under the lease and is normally the responsibility of the landlord. However, for a period between 2007 and no later than July 2009, the Agency had, under a variation of the lease, agreed to be responsible for replacing the tiles in the colonnade area. During the period of the construction, the control of the area passed to the Agency.

100.The actual works were concluded sometime in 2008.  Although there were some technical issues to be rectified which prevented a formal handover until 1 September 2010, in practice, as evidenced by the lessor providing signs in June 2010 in the area, and the Agency’s OH&S Team requiring the landlord’s approval for signs in the area in July 2009, the landlord had regained their usual control over the area. That means it was the landlord, not the Agency, which was capable of exercising control of the colonnade area in March 2010 when Ms Green’s injury occurred. Hence in accordance with the principle established in the cases, in particular, Re Barnard, it was the landlord, not the Agency which had effective control of this common area at the time of the injury. 

101.In summary, taking into consideration the case law and the factors identified from the cases, as the injury occurred outside the building which housed Ms Green’s workplace, that being an area of unrestricted public access, the Agency was not the sole tenant in the building, the employer did not have control over the area at the time of the injury, Ms Green’s duties were not required to be carried out in the colonnade area, and she was not on her way to undertake work in another building , she was not at her ‘place of work’ at the time of the injury.

102.That means her injury neither arose in the course of her employment, nor did it occur in her place of work.  As a consequence, she is not entitled to be compensated for the injuries she suffered from her fall and the decision under review is affirmed. 

I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member

Signed: ...................[sgd]......................................................
  Caitlin Baillie, Associate

Date/s of Hearing  22 August 2011
Date of Decision  14 September 2011
Counsel for the Applicant          Allan Anforth
Solicitor for the Applicant           Geoff Wilson,
  Maurice Blackburn Lawyers
Counsel for the Respondent     Peter Woulfe
Solicitor for the Respondent     Susan Dalliston,
  Sparke Helmore Lawyers