Mr Perera's employer leased and occupied the fifth floor of a building. The leased premises included a common area immediately in front of shopfronts forming the façade of the ground floor of the building. The entrance to the building was set back a few metres within this common area. Mr Perera injured his knee immediately outside the entrance door of his employer's office building whilst on his way to work. Had he reached his place of work and why was this relevant?
Amendments effective from 13 April 2007 to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) removed "journey" claims to and from a place of work from being compensable under the Comcare scheme. This was done to strike a balance between employers' obligations to employees injured through employment and sustaining reasonable costs of the scheme's maintenance. Employers were no longer liable for injuries sustained by employees in such journeys over which they had no practical control over. The Act does not define the boundaries of a place of work within which an injury is compensable, so where does a place of work start and finish?
For Mr Perera, the AAT affirmed Comcare's decision that he had not reached his place of work when he injured his knee. On the facts, he was outside the building where there was unrestricted public access over which the employer had no control. The building housed a number of different tenants. Only one floor was leased by the employer and employees did not carry out their duties in the area in question.
There is no generally applicable test of what constitutes a place of work and indeed it would be impossible to set an identifiable boundary of where a place of work starts and finishes. The Tribunal found the occurrence of this incident in the leased common area was not determinative in the absence of control over the area by the employer. The Tribunal also confirmed that in the absence of the legislation saying so, a place of work should not be defined by the property boundary of the place of work.
In this case the Act was interpreted narrowly and purposively, with regard to the object of the amendments excluding journey claims. This decision confirms the test of what is a workplace is a subjective factual issue to be determined on a case by case basis. An employer's control over the area in question in both a legal and a practical sense is not only relevant but is a weighty factor for consideration.
Perera v Comcare (2009) AATA 499
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