Rye and Comcare (Compensation)

[2020] AATA 4963

Rye and Comcare (Compensation) [2020] AATA 4963 (9 December 2020)

Division:GENERAL DIVISION

File Number(s):      2017/5999

Re:Katherine Rye

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:9 December 2020

Place:Sydney

1. The reviewable decision, being the decision of Comcare made 14 September 2017, is set aside.

2. In substitution it is decided that Comcare is liable to pay compensation to Ms Rye in respect of an injury suffered by her on 5 July 2017, being an injury to her right knee.

3. Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, Comcare shall pay the costs incurred by Ms Rye in these proceedings.

   ........................[SGD]................................................

   Deputy President J W Constance

   CATCHWORDS

   WORKERS’ COMPENSATION – right anterior cruciate ligament tear – whether injury arose out of, or in the course of, the Applicant’s employment – where Applicant participated in NAIDOC netball event ­– where Applicant encouraged by Department employees to participate in the competition ­– where the Department sought to exercise control of the conduct of its employees during the competition – where Department represented its employees who participated as representatives of the Department – where injury arose out of her employment with the Department – decision set aside and substituted

   LEGISLATION

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

   CASES

   Comcare and PVYW (2013) 250 CLR 246.
   Federal Broom Company Pty. Limited and Semlitch (1964) 110 CLR 626
   Hatzimanolis and A.N.I. Corporation Limited (1992) 173 CLR 473
   Roncevich and Repatriation Commission (2005) 222 CLR 115
   Wheele and Comcare [2010] AATA 200

   REASONS FOR DECISION

   Deputy President J W Constance

   9 December 2020

   A.  INTRODUCTION

4. On 5 July 2017 the Deadly Wingers netball team was playing in a competition arranged as part of a NAIDOC WEEK FAMILY FUN DAY held in Wyong, New South Wales.

5. Ms Rye was a member of the team.  Unfortunately, soon after the competition began she injured her right knee and was taken to hospital.

6. At the time, Ms Rye was employed by the Department of Human Services and had been granted cultural leave for the entire day to take part in the competition.  She applied for compensation in respect of the injury in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

7. On 28 July 2017 Comcare denied liability to pay compensation on the basis that Ms Rye’s injury did not arise out of, or in the course of, her employment by the Department.  Ms Rye requested Comcare to reconsider the decision.  On 14 September 2017 Comcare affirmed its earlier decision.  I will refer to the later decision as the reviewable decision.

8. Ms Rye has applied to the Tribunal to review the reviewable decision.  For the reasons which follow the reviewable decision will be set aside and in substitution it will be decided that Comcare is liable to compensate Ms Rye in respect of the injury.

   B.  FACTS

   Statement of agreed facts

9. The facts set out in the following paragraph are reproduced from the Statement of Agreed Facts lodged by the parties and dated 15 May 2020.  Based on the evidence before me I am satisfied that the agreement is appropriate.

10. I am satisfied of the following facts.  The footnotes referred to in the original document have been annotated to include a reference to the exhibits before me.

    2.1. The Applicant was born on [redacted] 1980 and identifies as being of Aboriginal descent.[1]

    [1] T3, p. 16 (Exhibit RR1).

    2.2. The Applicant commenced employment with the Department of Human Services (DHS), now known as Services Australia, on 9 February 2009.[2]

    [2] T3, p. 22 (Exhibit RR1).

    2.3. At the time of her injury:

    a. The Applicant was employed as a permanent, full-time Service Officer.[3]

    [3] T15.4, p. 62 (Exhibit RR1).

    b. The Applicant worked in the Service Centre in [redacted], a suburb of Newcastle, NSW.[4]  She usually worked Monday to Friday from 8 a.m. until 4:35 p.m.[5]

    [4] T15, p. 48 (Exhibit RR1).

    [5] Transcript of Tribunal hearing, 13 November 2018, p. 35 (Exhibit AA2).

    c. The Applicant lived in [redacted], a suburb of Newcastle.

    2.4. National Aboriginal and Islanders Day Observance Committee (NAIDOC) Week is a national event held annually “to celebrate the history, culture and achievements of Aboriginal and Torres Strait Islander peoples.”[6] In 2017 NAIDOC Week was held from 2 to 9 July 2017.

    [6] T20.3, p. 149 (Exhibit RR1).

    2.5. DHS published an Aboriginal and Torres Strait Islander Employees Plan 2016-17 in which the Secretary referred to the implementation of “a number of measures to support our Aboriginal and Torres Strait Islander workforce” which had “contributed to a steady increase [in such people] joining the Department and employees who are proud to let the Department know they are Indigenous Australians.” The message continued with “[we] encourage everyone in the department to think about how they can actively support and contribute to the objectives [the Plan] contains.”[7]

    [7] Annexure B to the Applicant’s Statement dated 3 July 2018, p. 9 (Exhibit AA4).

    2.6. Part of the Plan contained the following text under the heading “Theme 4-Workplace Culture”:

    Commitment: Encourage and support all staff involvement in significant events and celebrations for Aboriginal and Torres Strait Islander Peoples such as NAIDOC week, National Reconciliation Week and Sorry Day, including local community celebrations and national events.[8]

    [8] Annexure B to the Applicant’s Statement dated 3 July 2018, p.10 (Exhibit AA4).

    2.7. The Indigenous Servicing Strategy 2016-2017 is a strategy adopted by DHS. The ‘purpose’ of such strategy is stated to be as follows:

    The Indigenous Servicing Strategy provides a clear strategic direction to all departmental staff delivering services to Aboriginal and Torres Strait Islander peoples. It identifies priority areas and ways to measure progress, and it ensures indigenous Australians receive the right service for their circumstance.

    Each priority area includes goals and proposed strategies to achieve these goals. All work areas involved in the design and delivery of services to Aboriginal and Torres Strait Islander peoples are encouraged to consider alternative or additional strategies to help meet these goals.[9]

    [9] Annexure to the Applicant’s Statement dated 3 July 2018, p. 24 (Exhibit AA4).

    2.8. DHS also had a Reconciliation Action Plan which provided, inter alia:

    The department’s RAP sets out the next steps in our journey to build opportunities for, and stronger relationships with, Aboriginal and Torres Strait Islander peoples. The plan recognises the importance of reconciliation and outlines the strategies and ideas that commit us to achieving the targets and outcomes. The plan also celebrates what we have achieved and looks at how we can share what we have learned with other government agencies.[10]

    [10] Annexure to the Applicant’s Statement dated 3 July 2018, p. 24 (Exhibit AA4).

    2.9. The DHS also had an Aboriginal and Torres Strait Islander Employees Plan. The purpose of such plan is stated to be as follows:

    The purpose of the Aboriginal and Torres Strait Islander Employees Plan is to improve the employment circumstances and future prospects for Aboriginal and Torres Strait Islander peoples in the department. The plan is to build a workforce reflective of the community we serve. We are striving to increase our Aboriginal and Torres Strait Islander workforce by 5% by the end of 2017.[11]

    [11] Annexure to the Applicant’s Statement dated 3 July 2018, p. 24 (Exhibit AA4).

    2.10. The Aboriginal and Torres Strait Islander Employees Plan also referred to the need, described as a “critical element” of Indigenous servicing, in “maintaining strong relationships and working with others to achieve shared outcomes”.[12]

    [12] Annexure to the Applicant’s Statement dated 3 July 2018, p. 24 (Exhibit AA4).

    2.11. Aboriginal and Torres Strait Islander employees are able to access two days of paid leave to attend cultural or ceremonial events including NAIDOC Week events, and ten days of unpaid cultural or ceremonial leave.[13] NAIDOC leave provisions are intended to ‘allow DHS Indigenous employees to participate in a range of activities that support the local Aboriginal and Torres Strait Islander community.’ Cultural leave is not intended to be used for an employee’s ‘participation in DHS NAIDOC office events where it is part of the workplace activities.’[14]

    [13] ST23, p. 168 (Exhibit RR2).

    [14] T15.7.2, p. 100 (Exhibit RR1).

    2.12. Pursuant to the “Department of Human Services Agreement 2011-2014”, ceremonial leave may be granted as a category of Miscellaneous Leave as paid or unpaid leave pursuant to clause G19. Clause G 19.2 provided: “Ceremonial leave granted under this clause G19 will count as service for all purposes”.[15]

    [15] T15.7.1, p. 93 (Exhibit RR1).

    2.13. On 10 January 2017, Tracy Reid, a DHS employee of the Age & Disability Processing section at the Central Coast Smart Centre, forwarded an email to various DHS employees including the Applicant’s supervisor, Joshua Jones, seeking interest to form a team to participate in a netball competition which was being organised by the Darkinjung Local Aboriginal Land Council on 5 July 2017 at a ‘NAIDOC Week family fun day’ at Baker Park, Wyong, NSW.[16]

    [16] Annexure 2 to statement of Joshua Jones dated 13 August 2018, [13] (Exhibit RR3).

    2.14. On 10 or 11 January 2017, Mr Jones had a conversation with the Applicant during a coaching session, being an internal DHS process, around the NAIDOC family fun day and an event that she could participate in if she wanted to. Mr Jones thought it would be a great way to connect with other indigenous staff within their service zone.[17]

    [17] Transcript of Tribunal hearing, 13 November 2018, p. 84 (Exhibit AA2).

    2.15. On 11 January 2017 Mr Jones forwarded Ms Reid’s email to the Applicant and she expressed interest in joining the netball team.[18]

    [18] Annexure 2 to statement of Joshua Jones dated 13 August 2018 (Exhibit RR3).

    2.16. At around the same time, the Applicant was considering applying for a more senior role in DHS, namely the role of Indigenous Services Officer (ISO). Such a role is one principally of liaison for DHS and the Aboriginal and Torres Strait Islander community. The role involves the ISO travelling to communities, schools and local councils to speak about DHS services and assist the community in understanding the use of the services. An ISO is also required to assist DHS customers at offices with any issues they have.[19]

    [19] Applicant’s Statement at [10], p. 2 (Exhibit AA4).

    2.17. On 1 February 2017, the Applicant’s supervisor Mr Jones wrote an email to Laurie Mercy, Indigenous Program Support Manager DHS, stating “I would love to nominate Kate Rye to be part of the NAIDOC/Reconciliation committee.”[20] This is an internal DHS committee.

    [20] Annexure A to the Applicant’s Statement dated 3 July 2018, p. 6 (Exhibit AA4).

    2.18. The Applicant was informed by Mr Jones that she could take cultural leave to attend the netball competition.[21]

    [21] T15.2, p. 58. See also statement of Joshua Jones dated 13 August 2018, [13] (Exhibit RR1; Exhibit RR3).

    2.19. The Coaching Records between the Applicant and her supervisor, Joshua Jones dated 8 March 2017, maintained by DHS, record “Kate to code cultural leave for NAIDOC Netball and local NAIDOC event in Newcastle.”[22]

    [22] Annexure to the Applicant’s Statement dated 3 July 2018, p. 84 (Exhibit AA4).

    2.20. In the same document under the heading “New Discussion Points Raised by Team Leader/Manager”, the record states:

    SCM [Service Centre Manager] discussed with Kate the upcoming NAIDOC netball events around singlets and polo’s [sic] to provide measurements, Kate indicated she will provide measurements to Tracey next week to ensure a Team DHS shirt is ordered.[23]

    [23] Annexure to the Applicant’s Statement dated 3 July 2018, p. 83 (Exhibit AA4).

    2.21. In the same document under the heading “Agreed Actions from Today’s Session”, the following is relevantly stated:

    Kate to code ceremonial leave in ESS and send Tracy a reply email with shirt sizing’s [sic] for NAIDOC netball.[24]

    [24] Annexure to the Applicant’s Statement dated 3 July 2018, p. 83 (Exhibit AA4).

    2.22. On 10 March 2017, Mr Jones provided the Applicant with instructions on how to code cultural leave for the NAIDOC netball competition and Newcastle NAIDOC celebrations she was going to attend (on 7 and 5 July 2017 respectively).[25]

    [25] T20.2, p. 147 (Exhibit RR1).

    2.23. Meetings of the NAIDOC/Reconciliation committee were held in normal working hours of DHS, starting at 9 a.m. and finishing at 10 a.m. on a monthly basis and as the celebration week approached, on a weekly basis.[26] Minutes were recorded for each meeting on DHS letterhead.[27]

    [26] Transcript of Tribunal hearing, 13 November 2018, p. 27 (Exhibit AA2).

    [27] Annexure to the Applicant’s Statement dated 3 July 2018, pp. 12-16, 21-22, 34-35 (Exhibit AA4).

    2.24. The DHS information sheet for NAIDOC week 2017 included the following statement:

    The aim of these events is to celebrate the rich and unique Aboriginal and Torres Strait Islander cultures within the department and strengthen the relationship between our department and Aboriginal and Torres Strait Islander peoples, communities and organisations. We encourage you to organise or get involved in a local NAIDOC Week event.[28]

    [28] T20.3, p. 149 (Exhibit RR1).

    2.25. On 7 June 2017, Ms Reid sent an email to 27 netball team members, advising them of the team to which they were allocated and attaching a Player Code of Behaviour, which each player was obliged to observe. The email also stated that photos would be taken of the players on the day and may be used for future promotional use and placed on social media.[29]

    [29] Annexure 4 to statement of Joshua Jones dated 13 August 2018 (Exhibit RR3).

    2.26. The Applicant was approved cultural leave for 0.7 of a day on 3 July 2017 (i.e., between 9 a.m. and 3 p.m.) so that she could attend NAIDOC Week events in Newcastle.[30] The Applicant wore DHS appropriate clothing.[31] On that day, she worked from 8:15 to 9:00 a.m., then took cultural leave, and then completed another half hour of work between 3:30 and 4:00 p.m.[32]

    [30] ST22, p. 95 (Exhibit RR2).

    [31] Transcript of Tribunal hearing, 13 November 2018, p. 90 (Exhibit AA2).

    [32] ST24, p. 250 (Exhibit RR2).

    2.27. The Applicant worked on 4 July 2017.[33]

    [33] Transcript of Tribunal hearing, 13 November 2018, p. 59 (Exhibit AA2).

    2.28. The Applicant was granted cultural leave for an entire day on 5 July 2017 so that she could attend the NAIDOC Week ‘family fun day’ in Wyong.[34]

    [34] ST22, p. 95 (Exhibit RR2).

    2.29. Mr Jones, the Applicant’s line manager, encouraged her to participate in the NAIDOC family fun day on 5 July 2017. He encouraged the Applicant to participate as she identified as indigenous, as did Mr Jones, and as he thought it would be a great way to build rapport with her as her supervisor and within DHS.[35] Mr Jones also encouraged participation as he thought the NAIDOC family fun day was a great way for the Applicant to connect with other indigenous DHS staff within the same zone.[36]

    [35] Transcript of Tribunal hearing, 13 November 2018, p. 83 (Exhibit AA2).

    [36] Transcript of Tribunal hearing, 13 November 2018, p. 84 (Exhibit AA2).

    2.30. On 5 July 2017, the Applicant drove in her own car from Wallsend to Baker Park, Wyong, to attend the NAIDOC Week netball competition, which started at 9 a.m. The Applicant arrived at around 8 am to 8:30 a.m. and met with Mr Jones and some other colleagues who were teammates at around 8:45 a.m.[37]

    [37] Applicant’s Statement at [22], p. 3; Transcript of hearing 13 November 2018, p.63 (Exhibit AA2).

    2.31. The Applicant paid for a team jersey. The Applicant was allocated to a team called the Deadly Wingers. The word “DEADLY” was emblazoned on her shirt and above it were the words “Department of Human Services”. DHS provided no funding for the event.[38]

    [38] Transcript of Tribunal hearing, 13 November 2018, p. 57 (Exhibit AA2).

    2.32. The Applicant was one of two employees from the Mayfield Service Centre to attend the netball competition. The other employee was her supervisor, Mr Jones.[39]

    [39] Statement of Joshua Jones dated 13 August 2018, [16]. Also see transcript of hearing, 13 November 2018, p. 86 (Exhibit AA2).

    2.33. There were between 10 and 15 teams in the competition.[40] Three of those teams contained DHS employees.[41]

    [40] Statement of Joshua Jones dated 13 August 2018, [16] (Exhibit RR3).

    [41] Annexure 4 to statement of Joshua Jones dated 13 August 2018 (Exhibit RR3).

    2.34. At about 9:30 a.m. on 5 July 2017, while playing netball, the Applicant suffered injuries to her right knee, including an acute tear of the anterior cruciate ligament.[42]

    [42] Transcript of Tribunal hearing, 13 November 2018, p. 37 (Exhibit AA2).

    2.35. Mr Jones witnessed the Applicant fall and injure herself and he and others provided assistance to her and called for first aid.[43]

    [43] Transcript of Tribunal hearing, 13 November 2018, p. 93, T15.4, p. 63 [9] (Exhibit AA2).

    2.36. The Applicant was taken to hospital by another DHS staff member. Mr Jones drove the Applicant’s motor vehicle to the DHS office nearby.[44]

    [44] Transcript of Tribunal hearing, 13 November 2018, p. 93 [25-31] (Exhibit AA2).

    2.37. DHS has an internal publication for staff called “The Daily” which is a newsletter circulated around to all staff every morning.[45] On 7 July 2017, a newsletter was published by North NSW Daily (entitled “Special Edition – NAIDOC 2 – 9 July”) which was provided to employees of DHS, which included the following:

    [45] Transcript of Tribunal hearing, 13 November 2018, p. 77 (Exhibit AA2).

    The day also hosts the annual all-Important Netball competition. Tuggerah Smart Centre’s Tracy Reid [text missing] three teams from Tuggerah Smart Centre which was great to see Departmental representation, well done Tracy.[46]

    [46] Annexure B to the Applicant’s Statement dated 3 July 2018, p. 81 (Exhibit AA4).

    2.38. On 8 July 2017, Tracy Reid sent an email to DHS employees enclosing photographs of the NAIDOC 2017 family fun day. The photographs included the participants in the netball game. The photographs were taken by a DHS employee. The following comment was included in the email:

    This was the biggest representation from the Department at the event that has been running for quite a number of years now.[47]

    [47] Annexure 5 of Statement of Joshua Jones dated 13 August 2018 (Exhibit RR3).

    2.39. On 11 July 2017, the Applicant submitted a claim for workers’ compensation. She claimed compensation on the basis that she was “engaged in an employer approved activity”. The activity was described as “Playing netball at NAIDOC in an employer approved activity.”[48]

    2.40. She claimed to have suffered an anterior cruciate ligament tear and a strain to the medial collateral ligament in the right knee when she was playing netball on 5 July 2017.[49]

    2.41. The injury was diagnosed as a rupture to the Applicant’s cruciate ligament of the right knee. Surgery was required and a procedure described as arthroscopic ACL reconstruction using hamstring auto graft was performed by Dr Bruce Caldwell, orthopaedic surgeon, on 22 August 2017.[50]

    2.42. There is no dispute that the Applicant suffered such injury whilst participating in the netball game.

    2.43. On 28 July 2017, DHS, on Comcare’s behalf, issued a determination which denied liability under s 14 of the SRC Act for the claimed right knee injuries.[51]

    2.44. On 22 August 2017 the Applicant requested a reconsideration of the determination.[52]

    2.45. On 14 September 2017, DHS, on Comcare’s behalf, issued a reviewable decision affirming the determination.[53]

    2.46. On 10 October 2017, the Applicant filed an application for review by the Administrative Appeals Tribunal of the reviewable decision dated 14 September 2017.[54]

    [48] T3 (Exhibit RR1).

    [49] T3 (Exhibit RR1).

    [50] Administrative Appeals Tribunal Decision dated 20 December 2019 at [34] p.8.

    [51] T19 (Exhibit RR1).

    [52] T20 (Exhibit RR1).

    [53] T1.1 (Exhibit RR1).

    [54] T1 (Exhibit RR1).

    Evidence of Mr Jones, Service Centre Manager, Department of Human Services

1. Mr Jones provided statements dated 21 July 2017,[55] 13 August 2018[56] and 13 July 2020.[57]  He gave evidence at the initial hearing on 13 November 2018 and before me.

   [55] Exhibit RR1 at 61.

   [56] Exhibit RR3.

   [57] Exhibit RR4.

2. I am satisfied that Mr Jones was an honest witness who gave his evidence to the best of his recollection.

3. Mr Jones became Ms Rye’s Line Manager in May 2016 and he held this position at the at the time she was injured.

4. In his statement made 13 July 2020, Mr Jones said, in part:

   If Ms Rye had decided to leave the event prior to its scheduled conclusion and not return to work, I would have expected her to seek my approval to do so.  I would not have expected her to obtain my approval to leave otherwise, because she already had my approval to be absent from work for the entire day on Cultural Leave to attend the event.  If she had subsequently decided not to attend the event I would have expected her to let me know so that I could decide whether the approved leave needed to be reversed.[58]

   I accept this evidence.

   [58] Exhibit RR4 at [5].

5. I make the following further findings of fact based on Mr Jones’ evidence:

   ·Mr Jones understood the Family Fun Day was scheduled to end between 1pm and 3pm;

   ·as Mr Jones was Ms Rye’s line manager and supervisor, she needed his permission to leave the event prior to its coming to an end;

   ·Mr Jones exercised some managerial control over Ms Rye during the event;

   ·Mr Jones was present at the event as a participant, but as he had a staff member present with him he had some responsibility for her;

   ·had Ms Rye intended to leave the event before its completion he would have expected her to tell him why she was leaving early and he would have determined whether she should return to work that day;

   ·Ms Rye would have been subject to sanction if she refused to return to work if directed by Mr Jones to do so.

   C.  RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)DEPUTY PRESIDENT J W CONSTANCE

6. Subsection 14(1) provides:

   (1)  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 death, incapacity for work, or impairment.

7. Subsection 5A(1) provides:

   (1)  In this Act:

   injury means:

   (a)a disease suffered by an employee; or

   (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; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.  [Emphasis added]

8. Paragraph (c) of subsection 6(1) of the Act provides:

   (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

   …

   D.  ISSUES FOR DETERMINATION

9. The following issues arise for determination.

   (1)Was the injury suffered by Ms Rye an injury “arising out of” her employment by the Department of Human Services within the meaning of subsection 5A(1) of the Act?

   (2)If not, was the injury suffered by Ms Rye “sustained ……  while [Ms Rye] was temporarily absent from [her] place of work undertaking an activity …… associated with [her] employment” by the Department of Human Services within the meaning of paragraph 6(1)(c) of the Act?

   (3)If not, was the injury suffered by Ms Rye an injury suffered “in the course of,” her employment by the Department of Human Services within the meaning of subsection 5A(1) of the Act?

   E.  REASONING

   Issue 1:  Was the injury suffered by Ms Rye an injury “arising out of” her employment by the Department of Human Services within the meaning of subsection 5A(1) of the Act?

10. In Federal Broom Company Pty. Limited and Semlitch[59] the High Court of Australia gave consideration to the word “employment” in the context of the contribution of employment to an injury suffered by a worker claiming compensation under the Workers’ Compensation Act, 1926-1960 (NSW).

    [59] (1964) 110 CLR 626.

11. Windeyer J said, in part:

    I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment.”[60]

    [60] At 641.

12. The High Court considered the meaning of the phrase “arising out of defence service” in Roncevich and Repatriation Commission.[61]The Veterans’ Entitlement Act 1986 (Cth) provided that an injury was compensable if it arose out of, or was attributable to, the member’s defence service.

    [61] (2005) 222 CLR 115.

13. In a majority judgement the Court said:

    …… whether an event arises in the course of an activity, or as here, out of an activity” , depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties.  The connection must however be a causal and not merely temporal one. 

    ………………..

    The use disjunctively in s. 70(5) of the expression “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant,  direct or proximate.[62] [Emphasis in original].

    [62] At 125-126.

14. Applying the principles set out above I am satisfied that the injury suffered by Ms Rye arose out of her employment by the Department of Human Services.  My reasons for this conclusion are set out in the following seven paragraphs.

15. At the time Ms Rye decided to participate as a member of the Deadly Wingers team, her employer had published its Aboriginal and Torres Strait Islander Employees Plan which encouraged existing employees (including Ms Rye) to consider how they could actively assist in increasing the number of indigenous people joining the Department’s workforce. Existing employees were encouraged to participate in NAIDOC Week activities.

16. At the same time the Department’s Reconciliation Action Plan referred to the building of stronger relationships with Aboriginal and Torres Strait Islander peoples.

17. The Department also encouraged employees to attend events such as the Fun Day, including associated activities, by granting special leave to enable them to do so.

18. On the basis of this evidence I am satisfied that at the relevant time it was the policy of the Department to encourage its employees (including Ms Rye) to attend events such as the NAIDOC Family Fun Day with the aim of building relationships with members of the Aboriginal and Torres Strait Islander communities.

19. Employees of the Department, apparently acting in their official capacities and using Departmental resources, encouraged Ms Rye to participate in the netball competition in that:

    ·on 10 January 2017 Ms Reid forwarded an email to Mr Jones seeking interest in forming a netball team to enter the competition;

    ·on that or the next day, during a work meeting, Mr Jones informed Ms Rye that he thought that participation in the team would be a great way for her to connect with other indigenous staff;

    ·on 11 January 2017 Mr Jones forwarded a copy of the email from Ms Reid to Ms Rye;

    ·Mr Jones assisted Ms Rye to apply for leave to participate in the competition and granted her request;

    ·Department records of an official coaching session between Ms Rye and Mr Jones include references to Ms Rye’s preparation for the competition and reference to her obtaining a Team DHS T shirt for the event;

    ·The Department issued an information sheet for NAIDOC Week 2017 encouraging employees ‘to organize or get involved in a local NAIDOC Week event”. [63]

    [63] Exhibit RR1 at 149.

20. The Department sought to exercise control of the conduct of its employees, including Ms Rye, during the competition by:

    ·informing participants of the team in which they were to play;

    ·issuing a Player Code of Behaviour to participants;

    ·advising participants that photographs of players would be taken on the day and may be used for the Department’s promotional activities;

    ·requiring Ms Rye to wear a team shirt on which the words “Department of Human Services” appeared above the name of the team;

    ·Mr Jones attending the competition in the role of Ms Rye’s supervisor as well as a team member.

21. In internal publications the Department represented that its employees who participated in the competition were representatives of the Department.

22. For these reasons I conclude that Ms Rye’s injury arose from her employment by the Department of Human Services.  In summary, Ms Rye identified as an Indigenous person and on this basis her line manager and others encouraged her to take part in the competition.  She engaged in the competition, at least in part, to establish and strengthen her relationships with other members of the Indigenous community in accordance with the Department’s stated policies.  Further, the Department purported to exercise some control over Ms Rye while she was participating in the competition.

    Issue 2:  Was the injury suffered by Ms Rye “sustained ……  while [Ms Rye] was temporarily absent from [her] place of work undertaking an activity …… associated with [her] employment” by the Department of Human Services, within the meaning of paragraph 6(1)(c) of the Act?

23. In view of the conclusion I have reached in relation to the first issue it is unnecessary that I consider those that follow.  However, in case I am wrong in that conclusion I will consider them.

24. Two questions arise in considering the second issue.

    (1)Was the injury sustained while Ms Rye was temporarily absent from her place of work?

    (2)If so, was she undertaking an activity associated with her employment at the time?

    Was Ms Rye “temporarily absent” from her employment when she was injured?

25. Counsel for Comcare argued that I should follow the principles set out in the Tribunal’s decision in Wheele and Comcare,[64] although acknowledging that the period said to be a temporary absence in that matter was probably the “outer limit”.

    [64] [2010] AATA 200.

26. Mr Wheele took leave for a period of seven days to participate in the Australian Police and Emergency Services Games.  He was injured while participating.  One of the issues before the Tribunal was whether Mr Wheele was entitled to compensation by reason of the provisions of subparagraph 6(1)(c)(ii) of the Act.

27. The Tribunal said, in part:

    I find that the injury did occur while the Applicant was temporarily absent from his place of work.  The concept of a temporary absence is an elastic one, for example is a person on annual leave temporarily absent from his or her place of employment or can they in context simply be said to be “absent” from work.[65]

    [65] At [13].

28. While I agree that whether or not an absence is temporary is not to be determined solely by the length of the absence, I do not agree that the words “temporarily absent” should be interpreted with the degree of elasticity suggested in the Wheele reasons.  The words used in the Act must be interpreted in their context.

29. The Oxford English Dictionary definition of temporary includes:

    Lasting for a limited time; existing or valid for a time (only); not permanent; made to supply a passing need.

30. The Macquarie Dictionary includes:

    … lasting, existing, serving, or effective for a time only, not permanent …

31. Although the words “temporarily absent” from a place of work have appeared in section 6 of the Act since it was enacted in 1988, there have been amendments to that section. Paragraph 6(1)(c) in its present form was inserted in amendments made by the Safety, Rehabilitation and Compensation and Other Legislation Act 2006 (Cth).[66]

    [66] No. 54 of 2007.

32. In the Explanatory Memorandum which accompanied the Bill it was put that:

    The amendments 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. For example, an employee who leaves his or her workplace at lunch time to buy a sandwich will not be covered by the SRC Act while he or she is absent from the workplace.

    However, the amendments do not affect:

    ·Injuries incurred by ab employee during an ordinary recess at the workplace – new paragraph 6(1)(b); and

    ·Injuries incurred by an employee while the employee is temporarily absent from his or her workplace undertaking an activity associated with the employment or at the direction or request of the employer ­– new paragraph 6(1)(c).[67]

    [67] At 6-7.

33. In a workplace such as that of Ms Rye, the usual overnight intervals between discrete periods of daily work are not regarded as temporary absences from work.  Rather they are regarded as periods of time when an individual is free of the constraints and obligations of his/her employment. In the circumstances of this case, I accept the argument put on behalf of Comcare that “the phrase ‘temporarily absent’ should ordinarily be regarded as referring to absences during the same working day.”[68]  However circumstances may vary and this conclusion should not be taken as an indication that an employee can never be temporarily absent for a period which spans more than one working day.

    [68] Respondent’s Statement of Facts, Issues and Contentions dated 12 June 2020 at [35].

34. In this matter it is not in dispute that Ms Rye worked a full day on 4 July 2017, the day prior to her being injured.  Had she not been injured, at the conclusion of the events on 5 July 2017 she was not obliged to return to her workplace until the commencement of the working day on 6 July 2017.  In this context, Ms Rye’s absence from work on 5 July 2017 should be seen as an extension of the usual period during which she was not obliged to attend her workplace rather than any form of temporary absence.

35. I conclude that Ms Rye was not temporarily absent from her employment when she was injured on 5 July 2017.

36. The second question referred to in paragraph 32 of these reasons does not arise for determination.

    Issue 3:  Was the injury suffered by Ms Rye an injury suffered “in the course of” her employment by the Department of Human Services within the meaning of subsection 5A(1) of the Act?

37. To find that an injury was suffered “in the course of employment” it is necessary that it be shown that there was a temporal connection between the injury and the employment.

    Judgements of the High Court

38. In Hatzimanolis and A.N.I. Corporation Limited[69] the High Court said:

    From a very early stage in the history of the law of workers’ compensation, it was recognized that the course of employment covered not only the actual work which a person was employed to do but also “the natural incidents connected with the class of work”. In 1931 in Whittingham v. Commissioner of Railways (W.A), Dixon J. said that there can “no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service”. But his Honour went on to say that it was “another to be sure what it included within this conception”. He thought that, in considering what was incidental to service, the sufficiency of the connexion between the worker’s employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.

    Incidence of service, however, is not a principle the application of which will determine whether the injury was sustained in the course of employment; it is a conclusion. When a tribunal concludes that a worker sustained injury while doing something incidental to his or her employment, it records a result which must have been reached, consciously or unconsciously, by reference to some principle or standard which leads to that result. Furthermore, while the matters to which Dixon J. referred in Whittingham must be examined for the purpose of determining whether an injury was sustained in the course of employment, those matters do not automatically determine that question. Without the assistance of an organizing principle, a tribunal of fact cannot know which of them is or are determinative.[70]

    And later:

    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 was authorized, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way.[71]

    ………………..

    The course of employment is ordinarily perceived as commencing when the employee starts work I accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or over an overall period or episode of work.[72]

    [69] (1992) 173 CLR 473.

    [70] At 478-479.

    [71] At 482.

    [72] At 483.

39. In Comcare and PVYW[73] the High Court explained how the Hatzimanolis principle is to be applied:

    The starting point in applying what was said in Hatzimanois, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.[74]

    [73] (2013) 250 CLR 246.

    [74] At 262.

    Discussion

40. As I have found that Ms Rye was injured at a time between two discrete periods of employment, the Hatzimanolis principle is applicable.

41. As the starting point I am satisfied that when she was injured, Ms Rye was not engaged in actual work.  Clearly, playing netball was not part of the duties required of her by her employer.

42. To answer the next inquiry posed by the High Court, Ms Rye’s injury was brought about while she was engaged in an activity rather than by reference to the place at which that activity occurred.

43. The question then arises: did the Department induce or encourage Ms Rye to engage in the netball competition as part of the NAIDOC Week activities?

44. For the reasons I have stated in deciding that Ms Rye’s injury arose out of her employment, I find that the Department did encourage her to engage in the competition.  It follows that the injury suffered by Ms Rye on 5 July 2017 arose in the course of her employment by the Department.

    F.  CONCLUSION

1. The reviewable decision, being the decision of Comcare made 14 September 2017, will be set aside.

2. In substitution it will be decided that Comcare is liable to pay compensation to Ms Rye in respect of an injury suffered by her on 5 July 2017, being an injury to her right knee.

3. Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, Comcare shall pay the costs incurred by Ms Rye in these proceedings.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...........................[SGD].............................................

Associate

Dated: 9 December 2020

Date(s) of hearing:	22 July 2020
Counsel for the Applicant:	Karl Pattenden
Solicitors for the Applicant:	G Giunta, Slater & Gordon Lawyers
Counsel for the Respondent:	Andrew Berger
Solicitors for the Respondent:	A Schofield, Comcare