Work health and safety

The WHS Act and the Work Health and Safety Regulations 2011 (Cth) (WHS Regs) apply in relation to the Commonwealth (including corporate and non-corporate Commonwealth entities) and ‘public authorities’[1] if the Commonwealth or public authority is conducting a business or undertaking[2] 

The WHS Act establishes general work health and safety duties and obligations, and requires risks arising from work to be eliminated or minimised. The WHS Regs provide the requirements that must be applied to specific work activities and hazards in order to meet WHS duties. In relation to the entry and exit of persons, the WHS Act and Regs include the following duties:

1. If the Commonwealth or a public authority has management or control of a ‘workplace’, it must ensure, so far as is reasonably practicable, that the means of entering and exiting the workplace are without risks to the health and safety of any person[3] .This duty applies to the extent that the business or undertaking of the Commonwealth or public authority involves the management or control, in whole or in part, of the workplace, with some limited exceptions.[4] Failure to comply with this duty is an offence, which can result in a pecuniary penalty, imprisonment or both.[5] 
2. If the Commonwealth or a public authority is conducting a business or undertaking at a ‘workplace’, it must ensure, so far as is reasonably practicable, that the layout of the workplace allows, and the workplace is maintained so as to allow, for persons to enter and exit and to move about without risk to health and safety, both under normal working conditions and in an emergency.[6] Failure to comply with this duty can result in a pecuniary penalty.[7]

Note that an ‘officer’ of the Commonwealth or a public authority must exercise ‘due diligence’, including taking the steps described in the WHS Act and Regs, to ensure that the Commonwealth or public authority complies with the above entry/exit WHS duties[8]. 

For the purposes of the WHS Act and Regs:

• A ‘workplace’ is a place where work is carried out for a business or undertaking and includes any place where a worker (including but not limited to an employee) goes, or is likely to be, while at work[9].

• A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Commonwealth or public authority is taken to be an ‘officer’ of the Commonwealth or public authority, as the case may be.[10]

In multi-tenanted buildings, there are usually common areas (e.g. carparks, entrance foyers, stairs and lifts) through which workers must pass in order to enter or exit a workplace. These common areas may be under the control or management of a landlord or property manager pursuant to a lease agreement. However, the above entry/exit WHS duties are non-delegable (i.e. they cannot be transferred to another person) and a term of any agreement or contract that purports to exclude, limit or modify the above duties or to transfer them to another person is void.[11]

In relation to the above entry/exit WHS duties, ‘reasonably practicable’ means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

• the likelihood of the hazard or the risk concerned occurring; and
• the degree of harm that might result from the hazard or the risk; and
• what the person concerned knows, or ought reasonably to know, about the hazard or the risk and ways of eliminating or minimising the risk; and
• the availability and suitability of ways to eliminate or minimise the risk; and
• after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.[12]

Where the Commonwealth or public authority and any other person has a duty under the WHS Act or Regs for the same matter, each person retains responsibility for their duty in relation to the matter and must discharge the duty to the extent to which the person can influence and control the matter.[13]

The Commonwealth or public authority must also consult, co-operate and co-ordinate activities with any other person who has a duty under the WHS Act or Regs, or a corresponding State or Territory WHS law, in relation to the same matter[14]. In the case of a multi-tenanted building, this might include the landlord or property manager and certain other tenants.

For guidance on managing health and safety risks, and on consultation, co-operation and co-ordination, there is practical information contained in relevant codes of practice, which have been approved by the Minister. See, for example, How to Manage Work Health and Safety Risks Code of Practice 2015 and Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice 2015, the latter of which contains information concerning multi-tenanted buildings. While approved codes of practice do not themselves impose duties or obligations, they are admissible in proceedings for an offence as evidence of whether or not a duty or obligation under the WHS Act or Regs has been complied with.[15]

Workers’ compensation

The SRC Act relevantly applies to the Commonwealth and ‘Commonwealth authorities’.[16] Unlike the WHS Act and Regs, the SRC Act does not expressly cover employees entering and exiting a place of work.

 For an injury sustained by an employee entering or exiting a place of work to be compensable under the SRC Act, it must first have either arisen out of, or in the course of, the employee’s employment, or be deemed to have so arisen.[17]

Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, their employment for the purposes of the SRC Act, an injury shall be treated as having so arisen if it was sustained while the employee was, at the direction or request of the Commonwealth or a Commonwealth authority, travelling for the purpose of that employment.[18] However, 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 Commonwealth authority.[19]

For the purposes of the SRC Act, the term ‘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 their employment.[20]

There are many reported cases concerning employees who were injured while entering or exiting multi-tenanted buildings through common or public areas, and whether their injuries arose out of, or in the course of, their employment.

These cases tend to indicate that an injury suffered by an employee when entering or exiting a place of work for the purposes of employment, or during an ordinary recess in employment, will be sufficiently connected to employment if the injury was sustained in an area that: (a) the employee was permitted or required to traverse in order to enter or exit a place of work; and (b) is not open to the public at large. The cases suggest that the area need not be inaccessible to the public, but access by the public must be somewhat limited. The recent decision in Ford and Comcare (Compensation) [2021] AATA 2170 suggests that (b) is not a requirement in all cases.

The following are some illustrative examples of where an injury was found to have arisen out of employment:

• An employee fell down stairs while exiting work premises on her lunch break. The stairs were open to other tenants in the building, were not open to the public at large and were a necessary means of egress.[21]
• An employee was injured while climbing stairs for the purpose of starting work. The stairs were located at the entrance of the building in an arcade and open to other tenants of the building and their customers. The stairs were not open to the public at large and were only used by the employee by virtue of her employment contract.[22]
• An employee fell into a hole that had been dug into a pathway located outside her work premises. She was using the pathway as a means to get to a public highway where she was able to catch a bus home from work.[23]
• An employee was injured while attempting to move an industrial waste bin that had been left in a parking space that was licensed to his employer. The employee required an access card to enter the car park and was moving the bin in order to enter his place of work.[24]
• An employee was injured when she fell over in a car park connected to the building she worked in while walking from her car to her place of work. The car park did not require an access card to enter, but an access card was required to use the lift or stairs.[25]
• An employee fell over while using stairs located in the common area of a building in which his employer was located on the 13th floor. The stairs were accessible to the public and were one of 3 permitted means of accessing the employee’s place of employment. The employee could not otherwise have reached his employment.[26]

Conclusion

While it may be that the term ‘workplace’ as used in the WHS Act and Regs differs in scope to the term ‘place of work’ as used in the SRC Act, there will be a practical benefit to Commonwealth agencies in considering their WHS duties and potential workers' compensation liabilities relating to the entry and exit of employees as two sides of the same coin. The facts giving rise to the workers’ compensation cases cited in this article certainly suggest that the scope of these duties and the scope of potential liabilities substantially overlap.

Commonwealth agencies with offices in multi-tenanted buildings need to be appraised of all relevant considerations when managing the risk of injury relating to entry and exit of employees. This may involve seeking legal advice regarding what is reasonably able to be done in relation to ensuring health and safety in the specific circumstances of the agency’s workplace.

[1] See definition of ‘public authority’ in s 4 of the WHS Act.

[2] WHS Act, s 12(1).

[3] WHS Act, s 20(2).

[4] WHS Act, s 20(1).

[6] WHS Regs, s 40.

[7] WHS Regs, s 40.

[8] WHS Act, s 27(1), (5).

[9] WHS Act, ss 7, 8.

[10] WHS Act, ss 247, 252.

[11] WHS Act, ss 14, 272.

[12] WHS Act, s 18.

[13] WHS Act, s 16.

[14] WHS Act, ss 12B, 46.

[15] WHS Act, s 275.

[16] See definition of ‘Commonwealth authority’ in s 4(1) and the extended meaning of ‘Commonwealth’ in s 5(7) of the SRC Act.

[17] SRC Act, ss 5A, 6.

[18] SRC Act, s 6(1)(d).

[19] SRC Act, s 6(1C).

[20] SRC Act, s 4(1).

[21] Learmonth v H & A Bag Company [1944] WCR (NSW) 131.

[22] M Ayling v Wende Bros [1962] WCBD (WA) 193, cited in Ford and Comcare (Compensation) [2021] AATA 2170.

[23] ACI Metal Stamping and Spinning Pty Limited v Boczulik [1964] HCA 26.

[24] Telstra Corporation Limited v Bowden [2012] FCA 576.

[25] Strathopoulos and Comcare (Compensation) [2018] AATA 651.