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
Perera v Comcare (2009) AATA 499
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Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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