Australia: Limitations On Meaning Of ´Place Of Work´

Last Updated: 25 November 2008
Article by Scott Moloney

In Barnard and Australian Postal Corporation [2008] AATA 507, the Administrative Appeals Tribunal discussed the operation of section 6(1)(5) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) relating to the proper meaning of 'place of work'.

On 8 August 2007, at approximately 1.10pm, having finished work for the day, Ms Barnard exited from the building in which she worked, walked across an area exterior to the building and then descended some steps leading down to the footpath. As she was descending the steps, she fell and sustained injuries for which she lodged a claim for rehabilitation and compensation under the SRC Act.

Australia Post made a determination denying liability for the claim. The basis of the decision was that Ms Barnard's claim for compensation was excluded by the application of section 6(1C) of the SRC Act, namely, that at the time the injury was sustained, she was travelling between her usual place of work and her residence. This section was inserted into the Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the Amendment Act).

The decision was affirmed on review and Ms Barnard applied to the Tribunal for review of the decision.

It was common ground that:

  • If Ms Barnard's fall occurred at her 'place of work' within section 6(1)(b) of the SRC Act, she would be entitled to compensation under that Act.
  • If her fall occurred whilst she was travelling between her 'place of work' and her residence, she was not entitled to compensation by reason of section 6(1C) of the SRC Act.

Section 6(1) relevantly provides:

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 risen 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.

(d) While the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment.

Section 6(1C) of the Act provides:

For the purposes of paragraph 1(d), travel between the employee's residence and the employee's usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.

Senior Member Penglis observed that the Amendment Act had significantly altered, by limitation, an employee's entitlement to compensation under the SRC Act.

Evidence at the hearing outlined the route taken by Ms Barnard from the room in which she worked to the point at which she fell:

  • From the first security door to the second security door (7.8 metres).
  • From the second security door to the sliding doors from which the applicant exited the building (5.1 metres).
  • The distance of the external area between the sliding doors and the commencement of the steps down to the footpath (14.4 metres).
  • The distance between the top of the steps and the bottom of the front step (2.45 metres).

Senior Member Penglis examined the lease of Australia Post's premises where Ms Barnard worked. Australia Post leased the entire building, however, it was considered significant that the lease defined 'common areas' of the building to mean 'all parts of the land other than the office premises on each of the ground, first, second and third floors leased to the tenant by this lease'.

Ms Barnard was found to have fallen and suffered her injury after having left the building but whilst still on the land the building was constructed on, which was a 'common area' under the lease. Senior Member Penglis thought that two decisions were instructive. The first decision, Muir and Australian Overseas Telecommunications Corporation [1992] AATA 196, outlined a number of factors that should be taken into account when determining whether or not an injury had occurred at an employee's 'place of residence'. These were:

  • It was not possible to formulate any general test as to when a person could be said to be travelling between their place of work and place of residence.
  • In particular, identification of a 'place of residence' by reference to the boundary of the property on which the residence is constructed was not supported by the majority of the authorities.
  • Each case depends upon its own facts.
  • It was essential to consider each element of the relevant legislative provision.

In Comcare Australia (Defence) v O'Dea [1997] 150 ALR 318, Justice Northrop observed [at page 325]:

In any event the use of the word 'place' in either of the expressions 'place of work' or 'place of residence' connotes defined area, normally the whole area of the workplace or residence or, to put the matter in another way, the area for which the owner or legal occupier of the area has control.

In the present case, it is noted that the expression 'place of work' is defined in section 4 of the Comcare Act in an inclusive form and includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment. The meaning of the expression 'place of work' in section 6 of the Comcare Act is such as to make the result in a given case depend largely upon matters of fact and degree: cf Justice Gummow, as referred to above. In the context of travelling between a place of residence and place of work, in general understanding of the expressions, what is connoted are the boundaries of the place of residence and the place of work.

...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.

Having regard to these decisions and the Explanatory Memorandum of the Amending Act, Senior Member Penglis considered that the issue as to the place over which the employer had control was relevant to the determination of an employee's 'place of work'. In addition, Senior Member Penglis held there would seem no reason to limit the notion of control to just legal control - so that notions of practical control may well have a role to play in determining the issue.

Senior Member Penglis found that the most beneficial construction of the words 'place of work' available to Ms Barnard on the facts did not extend beyond the building in which she worked. This was particularly so given that there was no evidence of any work being performed by Australia Post employees, let alone Ms Barnard, occurring either expressly or by necessary implication on the land outside the building. Senior Member Penglis recognised that a different conclusion may have been reached if the facts in this regard were different.

Accordingly, notwithstanding the fact that Australia Post leased the whole of the office areas within the building and was either the principal or sole tenant, Senior Member Penglis found that Ms Barnard was no longer at her 'place of work' once she had left the building in which she worked.

Ms Barnard's injury was therefore not a compensable injury for the purposes of the Act.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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