Snowy Mountains Hydro-Electric Authority v Cox, P.A
[1989] FCA 705
•20 NOVEMBER 1989
Re: SNOWY MOUNTAINS HYDRO-ELECTRIC AUTHORITY
And: PETER ALAN COX
No. N G570 of 1989
FED No. 705
Commonwealth Employees' Compensation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Commonwealth Employees' Compensation - employee injured during course of journey away from living accommodation - Employee resident in hostel owned and conducted by employer in respect of which no rent or licence fee was payable but a fortnightly service charge was made - Whether accommodation provided by employer to employee "as an incident of his employment and without charge" - - Employee engaged for period of twelve months only - Whether living accommodation provided "temporarily".
Compensation (Commonwealth Government Employees) Act 1971 s.34
HEARING
SYDNEY
#DATE 20:11:1989
Counsel for the Applicant: Mr B J Skinner
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr R F Wilkins
Solicitors for the Respondent: Carroll & O'Dea
ORDER
The appeal be allowed.
The decision of the Administrative Appeals Tribunal made on 27 July 1989 be set aside and, in lieu thereof, it be ordered that the application for review by the Administrative Appeals Tribunal be dismissed.
Liberty be reserved to the applicant to make application for an order for costs if it be so minded.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).
JUDGE1
On 10 March 1988, Peter Alan Cox, the respondent, was injured in a motor accident which occurred whilst he was travelling on the Monaro Highway between Cooma and Canberra. As a result of the accident, Mr Cox suffered amputation of part of his right leg. Subsequently, he made an application for compensation against his employer, the Snowy Mountains Hydro-Electric Authority, pursuant to the Compensation (Commonwealth Government Employees) Act 1971. Before the application was determined that Act was repealed and replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988. However, notwithstanding that repeal, Mr Cox's right to compensation continued to depend upon whether he had been entitled to compensation under the earlier Act: see s.124(2)(c) of the Commonwealth Employees' Rehabilitation and Compensation Act. The application was assessed on this basis by a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, an organisation established under the 1988 Act. But it was rejected. Mr Cox made an application to the Administrative Appeals Tribunal for review of the delegate's decision and the case came on for hearing before Mr C J Bannon QC, Deputy President. At the hearing before Mr Bannon it was common ground that only one issue arose for determination by him: the application to the facts of the case of s.34(1)(b) of the Compensation (Commonwealth Government Employees) Act. As it stood at the date of the accident, this provision relevantly read:
"34 (1) ... where an employee ... who is, as an incident of his employment and without charge to him, provided temporarily with living accommodation or receives an allowance in respect of his employment as compensation for temporarily providing his own living accommodation ... makes a journey from that living accommodation ... during a period during which he is not required for work, then--
(a)...
(b) in the case of a journey from that living accommodation--if the journey commenced during the period that commenced when he last ceased to be required for work and ended at nine o'clock in the morning of the day immediately following the day on which he last ceased to be required for work ..., the journey shall be deemed, for the purposes of sub-section 32(1), to have been a journey from his employment by the Commonwealth."
The effect of the journey being deemed, for the purposes of s.32(1), to have been a journey from the employee's employment by the Commonwealth, is that compensation would be payable for an injury sustained during the course of that journey.
The Tribunal found that, on or about 7 September 1987, Mr Cox was engaged as a temporary employee of the Snowy Mountains Hydro-Electric Authority. He was employed to work as an electrical fitter at Khancoban for a period of one year to 8 September 1988. Following his engagement, Mr Cox took up duties at Khancoban, residing in a hostel at Khancoban owned and conducted by the Authority. On Wednesday 9 March 1988, the day before the accident, Mr Cox worked until 6 pm. He was rostered to work on the following day, but when he awoke he felt sick and went back to sleep. At about 7.30 am he telephoned his superior, the Supervisor at Murray No.1 Power Station, to say that he would not be at work because he did not feel well. The Supervisor agreed that he could have the day off. After resting for a while, Mr Cox decided to take advantage of the fact that he was rostered off duty throughout the following day, Friday, and the weekend, to visit his parents, who resided at Singleton in the Hunter Valley. Accordingly, he prepared to leave the hostel. At about 8.30 am he set off by car for Singleton. He was injured at about 11.30 am whilst proceeding north from Cooma to Canberra. Having regard to the terms of s.34(1) of the Act, it was an important circumstance that the journey during which Mr Cox was injured commenced before 9 am on the day immediately following the day on which he was last required for work. It followed from this that the requirement of para.(b) of the subsection was fulfilled. As a result, the Tribunal only had to decide whether Mr Cox was "as an incident of his employment and without charge to him, provided temporarily with living accommodation". The Tribunal held that he was such a person. The Snowy Mountains Hydro-Electric Authority now appeals to this Court contending that the Tribunal's decision was erroneous in point of law.
The Tribunal made certain findings of fact concerning the hostel accommodation. It appears that Mr Cox was not compelled by the terms of his appointment to reside in the hostel, but was free to do so if he wished. In his reasons for decision Mr Bannon said:
"If he chose to live there he would be required to pay a sum of $12.50 per pay period, which appears to be fortnightly ..., as a service charge for the provision of cleaning and clean bedsheets for his room at the hostel. The fee is called the Murray Service Charge. No fee was required for rent or as a licence fee for the room. The hostel also provided meals for employees at a cost of $2.90 per meal. It also provided garaging for employees' cars at a fee of $3 per fortnight. The applicant accepted those terms and moved into the hostel when he commenced work. He agreed that he had been told that if he availed himself of the hostel accommodation he would be required to pay the Murray Service Charge, which was deducted from his wages. From both his evidence and that of Ms Vikstrom, I am satisfied that payment of the Murray Service Fee (sic) was a condition of his occupancy of a room at the hostel. Ms Vikstrom described it as a compulsory charge for service and for cleaning of the room. The room was provided with a bed, a cupboard, an electric heater and a sink. It had no carpet. ..."
In relation to the question whether the accommodation was provided "temporarily", no specific finding of fact was made. The Tribunal held that the relevant accommodation was provided temporarily because the applicant's employment was itself temporary, being for a period of one year only.
In the course of his decision, Mr Bannon referred to several cases, arising under different legislation but which were concerned with the entitlement of employees to recover compensation in respect of journeys: Adcock v The Commonwealth (1960) 103 CLR 194, Scobie v K D Welding Co Pty Ltd (1960) 103 CLR 314, Commissioner for Railways v Lollback (1955) 55 SR (NSW) 251. It was not suggested that any of these cases was helpful in construing s.34(1). Mr Bannon went on to indicate that he was unaware of any relevant decision in relation to s.34. Counsel informed me that they were unaware of any authority upon the meaning of the words presently in contest, and my own researches have not revealed any relevant decisions.
There is no doubt that Mr Cox was provided with accommodation at the hostel at Khancoban as an incident of his employment. However, there is a contest between the parties as to whether it is correct to say that this accommodation was provided "without charge to him". Mr Bannon described this as "a difficult question", but he answered it favourably to Mr Cox because of the fact that the Authority elected not to make any charge by way of rent or licence fee, but rather, charged for the provision of services, such as the cleaning of the room and the supply of linen.
I share Mr Bannon's view that the question is one of some difficulty. However, with respect to Mr Bannon, I have formed the opinion that, upon the facts found by him, Mr Bannon should have held that Mr Cox was not provided with accommodation "without charge to him". The relevant "living accommodation" was the right to reside at the hostel. Although no occupation fee, as such, was demanded, this right was conditional upon Mr Cox accepting a deduction from his pay of $12.50 per fortnight. However the sum might be described, the fact is that its payment was a condition of the right to occupy the room.
It is not easy to discern all of the policy considerations underlying s.34. For example, it is difficult to see why it should be critical that the relevant journey commence before 9 am or why, provided it did commence before 9 am, no limitation was put upon the extent of the journey which may be made with the benefit of compensation protection. However, the rationale of s.34(1) appears to be that there are occasions upon which employees are asked to reside in temporary accommodation; in effect, for the benefit of the employer rather than of themselves. Parliament may have foreseen difficulties in determining, in the particular case, for whose benefit the employee occupied particular accommodation. In such a situation it would be understandable for it to select, as the test, the question of whether the accommodation was supplied free of charge. Such a course would be consistent with the assumption that an employer who provides free accommodation does so for his own benefit; but that, if some charge is made, the accommodation is for the benefit, wholly or partly, of the employee. If that is the rationale underlying the subsection, it is logical to say that "charge", in s.34(1), refers to any charge which is imposed as a condition of the provision of the accommodation, however it may be described. I agree that one should distinguish a fee paid for optional services, such as the provision of meals or the garaging of a motor car. However, one must take into account a service which is compulsorily applied to all residents, such as the Murray Service Charge.
It follows that I am of the opinion that s.34(1) had no application to the present case and that the Tribunal fell into error of law in holding that it did. Under those circumstances, it is not necessary for me to deal with the second point: whether or not the accommodation was provided "temporarily". However, I comment that I can see no reason to disagree with Mr Bannon on this point. The word "temporarily" creates difficulties. In one sense, all human accommodation is temporary. But the word was probably intended to refer to accommodation occupied for a limited, rather than an indefinite, period. Looked at in that light, it seems to me that it is proper to say that an employee whose term of engagement is for a period of only twelve months temporarily occupies accommodation during that period.
The appeal to this Court should be allowed. The effect of my decision is that the appeal brought by Mr Cox to the Administrative Appeals Tribunal should have been dismissed, as a matter of law. Consequently, there is no point in remitting the matter to the Tribunal. The appropriate order is that the decision of the Tribunal be set aside and, in lieu thereof, it be ordered that the appeal to the Tribunal be dismissed.
During the argument before me nothing was said about the costs of the appeal. Having regard to the circumstances, it may be that the successful applicant will not seek an order for costs. I will refrain from making any order at the present time; but I will reserve liberty to the applicant to apply in respect of this matter, if it is so minded.
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