Having established that the employee has suffered a medical condition with the character of an 'injury', the Delegate's investigation seeks to establish whether or not this injury arose out of or in the course of employment in the ADF.
'Arose out of...' means that the injury was directly caused by the work that the employee had to do, or which was the result of an event which occurred in the workplace..
'In the course of...' means that the injury was caused by something less direct but nevertheless incidental to that work, from an incident whilst doing something that the person was authorised or could be reasonable expected to be doing.
Delegates should note that the SRCA and its predecessors are all 'no fault' Worker's Compensation Acts. This means that an injury received in the workplace has 'arisen out of or in the course of' employment and is compensable even if the injury was not due to negligence by the employer, and even if the injury was due to negligence by the employee.
Thus, in the majority of cases, an injury received while an ADF member was on duty is compensable providing only that the class of injury was not one of those formally excluded by these Acts. These exclusions, which are wide ranging, are discussed at 2 [5]5.
Delegates will also recall from Part 10 of this handbook, that a sudden, singular medical event such as a 'stroke' or a 'heart attack' must be regarded as an injury and not a disease, even though it may be the inevitable outcome of a prolonged disease process. In line with the 'no fault' doctrine underlying the legislation, spontaneously-arising injuries that occur on duty are compensable, even if there is no workplace contribution to the event, nor any employment related contribution to the underlying disease process.
Section 6 and 6A of the SRCA sets out a number of specific circumstances in which an injury to an employee is to be treated as having arisen out of or in the course of the employment.
Section 6(1)(b) of the SRCA extends liability for compensation in circumstances where the member was:
(b)(i) at the place of work or temporarily absent during an 'ordinary recess'
(b)(ii) travelling between place of residence and place of work
(b)(iii) travelling between normal place of residence and temporary place of residence
(b)(iv) travelling between two places of work
(b)(v) travelling between place of work or residence and place of education
(b)(vi) at the place of education referred to at (b)(v)
(b)(vii) travelling between the place of work or the place of residence AND certain other places for the purposes of obtaining medical treatment, a medical examination, a medical certificate, compensation payments or for other matters related to compensation administration or vocational rehabilitation.
The 1971 Act also includes further provisions with respect to journeys taken to other places.
Each of these subjects will be dealt with in turn.
Note: the SRCOLA 2007 changes removed the journey provisions to and from a place of residence and ordinary recess provisions away from the workplace. However these amendments will not affect claims under the SRCA as any journey related accidents after 13 April 2007 will be covered under the MRCA not the SRCA for ADF members.
The date of injury, disease or loss is the key date for determining entitlement to compensation in that it determines which Act was current at the time of the occurrence and thus which criteria governs access to benefits.
The date, on which a claim for compensation is made, is of small significance except when the Commonwealth has been prejudiced by the late lodgement of the claim.
Accordingly care must be taken to establish a precise date of occurrence of injury wherever possible.
In the case of an injury or the aggravation of an injury the appropriate date is the date when the event causing the injury occurred, e.g. the date of the fall or the motor vehicle accident.
The most common category of injury claimed with RCG falls within the coverage of S6(1)(b)(i) of the SRCA, i.e.:
b)'...while the employee:
(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment...'
Section 4(1) of the SRCA includes the following definition of 'place of work':
'place of work', in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.'
Neither the 1971 Act nor the 1930 Act contain a corresponding definition, however the SRCA definition clearly has application to all three Acts.
This definition makes it clear that a client's place of work is not just their usual 'work base' but also includes any other place where they are required to attend for the purposes of their employment, e.g. a parade, a training facility, a Board of Inquiry. Where a client's normal duties include driving, (e.g. a courier or a bus driver) their place of work includes the vehicle. These cases are not to be treated as 'travel' claims.
In most cases, it will be obvious whether a client was at the place of work for the purposes of the Act. However, certain special cases may arise. These are discussed at 17.8 [10].
Note that while presence at the 'place of work' is an important precondition for deciding that an injury has arisen out of or in the course of employment, the member's presence is not the only condition.
The member must also be on duty. See discussion below at 17.5 [11].
Note; The above definition is current until amendments which came into effect on 13 April 2007 which changed the definition of s6(1)(b) in respect of ordinary recess.
Delegates should note that it is not sufficient that the employee simply be present at the workplace for an injury to have coverage under the relevant compensation Act. The employee's presence 'on base' or in the normal workplace must be attendance for the purposes of employment, and not merely 'visiting' for a private purpose e.g.:
The purpose of the attendance must be established on the facts of each case. In establishing the facts, it may be helpful to have regard to:
Some ADF personnel assert that ordinary military service of its nature, has no distinction between on and off duty hours and that members should have compensation coverage 24 hours per day i.e. even for accidents occurring in the family home, or while travelling on leave. However, this is not correct.
ADF members do not ordinarily have 24 hour compensation cover. Although ADF members are required to work long and irregular hours and are subject to recall at short notice, there is normally a clear distinction between on-duty and off-duty periods. Compensation covers only the on-duty periods and the periods of travel between residence, workplace and return.
However, there are a narrow range of circumstances where ADF do incur a full 24 hour compensation coverage:
Refer to 17.8 [10] for further discussion of the coverage of members 'living-in', i.e. in barracks on bases.
In all other situations, worker's compensation coverage ceases at the cessation of duty on each day, excepting only the period of travel to the ADF member's residence (See 18 for the travel provisions).
Coverage under the 1988 Act extends to injuries sustained during any activities undertaken during an ordinary recess, subject to the exclusion in S6(3). This includes cover where the employee goes home for lunch. Any travel undertaken during an ordinary recess is not subject to the exclusionary provisions in S6(2), but is subject to S6(3) (abnormal risk).
'Temporarily absent' essentially means that the employee has left the workplace but intends to return to resume the day's work.
Situations where the employee has flexed off for the afternoon and is injured at some point after leaving the place of work cannot be considered within this provision. Depending on the time of injury, the travelling provisions may be applicable.
Ordinary recess is not defined in the SRCA, but can broadly be taken to mean formalised breaks in employment for meals or refreshment, or for safety-related purposes.
The Concise Oxford Dictionary includes the following relevant definitions:
ordinary – adj. 1 regular, normal, customary, usual ... commonplace
recess – noun. 3 a temporary cessation from work, esp. of Parliament, or US of a law court or during a school day
In Drummond v Drummond (1960), a Full Bench of the Supreme Court of Victoria stated that a recess was:
...a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea or 'smoko'. It is a period of rest incidental to a period of labour.
Depending on the facts of the case, ordinary recesses would usually include:
Particular issues may arise in relation to flexitime and leaving the work place during work time. These are discussed below.
The employment connection is not necessarily broken if a member leaves their place of work for a cigarette or to buy morning tea or other similar reasons during work hours. Generally the member would still be in the course of their employment if this type of brief absence is an accepted practice or has tacit approval by their supervisor.
If a member was required by their supervisor to seek specific authorisation each time they wished to leave the premises during work hours (except for meal breaks – an 'ordinary recess'), then only those times when the member was absent with approval would be considered to be in the course of the employment.
Where there is specific or tacit approval, if the employee goes beyond what is accepted or approved (e.g. going out for a smoking break, but then going shopping), the course of the employment will cease when the terms of the approval are exceeded.
When dealing with claims for injuries outside the workplace during work hours, tacit or specific approval for the absence must exist. Tacit approval means that an employer or supervisor is aware of what is going on and has accepted the practice without necessarily giving formal approval. This was discussed by Glass JA in Thompson v Lewisham (1978):
...a recess which is unauthorised by the employer is inapt for description as an ordinary recess, even though regularly taken. But I would think that proof that a break is regularly taken with the knowledge and connivance of those placed in authority over the worker by his employer, constitutes prima facie evidence of the consent and approval of the latter.
The original intent of including the provision relating to temporary absence during an ordinary recess in the new 1988 Act was to cover the increasing number of lunch time sporting injuries which could be seen to be employment related to at least some extent. Prior to the introduction of the 1988 Act, establishing employment connection in these cases was administratively time consuming. As a result of this provision, injuries during an ordinary recess will be covered unless an exclusion applies (e.g. submission to an abnormal risk).
Where a base includes residential barracks, in some cases the barracks will be both the 'place of work' and also the 'place of residence' of that member.
In the case of Comcare v O'Dea (1997) the member was injured in a motor vehicle accident while driving from his parent's home in Traralgon to the base at Bandiana on the day before he was due back to work. As part of his training, he was living in barracks at Bandiana for 12 months and also working there. The Tribunal held that he still 'normally resided' at Traralgon and was 'residing temporarily' at the Training Centre at Bandiana until the completion of his year of training. The member was held to be entitled to compensation under the journey provisions. This was upheld by the Federal Court. Northrop J also commented that if the member had been injured whilst walking from the barracks to the workshop to commence work it would not be treated as a journey claim but the question would be whether the injury arose out of the employee's employment.
An injury arises out of or in the course of employment only where the employee is not only present at the place of work, but is attending 'for the purposes of that employment' (See S6(1)b(i)). Thus, after hours injuries to 'living-in' members are received in their private capacity, and do not arise out of their employment. This is illustrated by Daykin and Department of Defence (1998) where the applicant, who lived in barracks as a matter of choice or convenience, was injured at 5.30pm when he was leaving the mess after having dinner with friends. He had been stood down from duties at 4.30pm that day. Liability was not found in his case.
The Daykin decision demonstrates that members 'living in' for the purposes of ordinary service do not usually have 24 hour compensation coverage, regardless of contentions about the status of the barracks as residence and/or workplace. Nevertheless, there are some exceptional circumstances where 24 hour coverage does apply:
The above comments with regard to the SRCA's after hours coverage of ADF members 'living-in' (i.e. on the base) also apply generally to similar circumstances under the currency of the 1971 Act, but with the notable exception of the journey provisions.
The 1971 Act has significantly different 'travel' provisions to those of the SRCA, i.e. in relation to journeys to or from work. Sections 32 and 33 of the 1971 Act cover the general case, i.e. travel to and from work whether or not the member was accommodated on base.
In short, journeys to work need not commence only from the employee's 'residence' to be compensable and likewise, journeys from work need not be to the residence but may be to any place.
Also, a journey to a workplace had to start at a time designed to get the employee to that workplace within the hour before the starting time to be compensable. Likewise, the journey from work had to commence within an hour of the stand-down for that journey to be compensable.
However, the most significant 1971 Act travel provision is the additional coverage contained in S34 of that Act, which operates only where living accommodation is provided by the employer and relates specifically to journeys other than those to and from work.
Section 34 allows compensation for injuries received on journeys that were:
and also journeys which were:
Section 35 provides that where there was more than one journey within these defined periods, only the first journey has compensation coverage.
Delegates referring directly to the text of S3 — 4 will observe that it refers to accommodation that was provided by the Commonwealth 'without charge'. However, given uncertainties relating application of Rations and Quarters payments during the currency of the 1971 Act, the RCG policy is to waive the requirement that the accommodation be free.
See also part 18 which deals specifically with the travel provisions of all the relevant Acts.
ADF members are sometimes, as an aspect of their employment, required to attend official celebrations or unit-sponsored social events at times which are otherwise 'out of hours'. Examples may be formal mess 'Dining-In' nights, award ceremonies, 'hail and farewells' or unit-sponsored celebration of unit successes.
Where attendance at such events is regarded by the unit as either compulsory or at least 'expected', those present are on duty and have compensation coverage.
This does not mean that all injuries arising out of these events must be considered compensable. The usual exclusions apply (see 26), including those relating to injuries to which the effects of alcohol or drugs contributed.
Section 4(13) of the SRCA deems an employee who is under the influence of alcohol or a drug to be guilty of 'serious or wilful misconduct' and S14(3) excludes compensation for injuries arising out of serious and wilful misconduct.
Similarly, injuries arising out of (e.g.) boisterous 'mess games' should be closely scrutinised to ensure that the member did not voluntarily or unreasonably submit to an abnormal risk of injury, as excluded by S6(3)(a).
Furthermore, the period of compensation coverage is confined to the official part of the function and does not necessarily cover the whole period of a member's subsequent attendance at the mess. Coverage should continue at least until the member is free to leave, (and probably, in practice, until it is socially reasonable to do so.) Generally there is an accepted/promulgated timeframe for the duration of the official function. However, it should be obvious that (e.g.) a member who departs from the mess at 3 a.m. has outstayed the compensation coverage for the journey home. The reasonable duration of the work-related attendance is for the Delegate to determine in each individual case, after investigation of the circumstances with the unit.
Landmark case-law has seen the extension of the provision under 6(1)b(i) – i.e. relating to injuries occurring during an 'ordinary recess' – to longer periods in some special cases.
Briefly, in those circumstances where the employee is required to reside away from his/her usual residence temporarily for the purposes of the employment, injuries occurring after the formal 'close of business' for the day, may still be compensable.
For instance, in the case of McCallum and Comcare (1993) an employee required to travel to a country town was injured while showering at her hotel before going to her place of work and was judged to have been injured in the course of employment. The injury was said to have occurred during an interval in an overall period of employment (the overall period of employment being the whole absence from home and temporary residence for work purposes).
In the case of Kennedy v Telstra Corporation Limited (1994) the employee, living temporarily in a hotel for work purposes (i.e. similar to McCallum) was initially judged to be 'on a frolic of his own' by the AAT when he left his hotel for a few beers and to watch the dogs instead of returning to his own hotel after dinner. However, a later review (1995) by the Federal Court found that he had been injured 'during an interlude or interval in the course of employment' because it transpired that the injury had actually been received in the confines of his own hotel during his return to his room.
The case of Mather and Mitchell and Dept of Defence (1994) extended this principle to the ADF situation. Two soldiers were injured while on 'authorised local leave' during the Kangaroo '92 exercise. An essential feature of this case was, that although the injured men were on a short authorised absence they were not entirely free but had been confined by orders to a particular geographic area during that time. (Ordinary formal 'leave' of course does not attract compensation cover.)
The uniting principles in these cases appear to be:
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