Case: WorkCover Authority of NSW (Inspector Paine) v Boral John Perry Industries Pty Limited t/as Boral Elevators (unreported, Industrial Relations Commission NSW, Maidment J, 8 August 1996)
Outcome: distinguished
In WorkCover Authority of NSW (Inspector Paine) v Boral John Perry Industries Pty Limited t/as Boral Elevators (unreported, Industrial Relations Commission NSW, 8 August 1996) Maidment J found that the obligation cast upon the defendant by s 16(1) of the Occupational Health and Safety Act 1983 (NSW) ('the NSW Act') was confined to the periods when maintenance work was being conducted on a lift. His Honour found that the existence of a contractual obligation to regularly service a lift did not result in the lift being, at all times, a place of work of the lift maintenance company within the sense of s 16 of the NSW Act. 24 Having cited Fisher CJ, Maidment J in Boral Elevators , continued (at 8): A council repairing a pot hole in a road is required to ensure that the site is safe during repair work. It is not, however, required by this legislation to ensure that the road surface is properly repaired such that no hazard will arise from the quality of the workmanship. 25 Telstra also relied upon passages where, after referring to Boral Elevators, the Full Bench of the NSW Industrial Court in Tsougranis v Inspector Carmody (No 2) [2006] NSWIRC 133 said: 40 On 3 September, the appellant had no employees at the site and the appellant did not enter or leave the site on that day. 41 The respondent contended that the work of the appellant continued on the site on 3 September 1998 even though he was not physically present, because his plans were still being used to construct the footings. 42 As Fisher CJ observed in respect of s 15(1) of the OH&amp;S Act, in Inspector Clarke v W.L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos 1212 &amp; 1213 of 1990, 30 June 1992) the phrase "at work" has temporal connotations. Similarly, in our view, in respect of the duty under s 16(1), it is necessary to determine the temporal obligations on 3 September 1998 of the appellant. The legislation does not require the appellant to ensure the product of his work, his advice, directions and drawings, were devoid of hazard. No actual work was being performed or "being done" in the conduct of his undertaking at the site. In other words, the appellant was not giving advice, giving directions, or making drawings. The OH&amp;S Act is directed to workplaces and does not impose an obligation to ensure that the product of that work is free from hazard: Boral Elevators . Clearly, the site was the builder's place of work, but there was no evidence before his Honour of a continuance of the work of the appellant. The obligation falls upon the prosecutor to demonstrate that the elements of s 16 have been proved unless there is a clear admission which there was not in this case. 43 In Boral Elevators , Maidment J found that the obligation cast upon the defendant by s 16(1) was confined to the periods during which maintenance work was being conducted on a lift. His Honour found that the existence of a contractual obligation to regularly service a lift did not result in the lift being, at all times, a place of work within the sense of s 16 of the Act. 44 We would observe that the appellant had no employees present at the site. Nor was the particular site at the relevant time within the description in WorkCover Authority v Schrader (2002) 112 IR 284 at [64] (that is, the place of work was to be considered as including "areas that are affected by or in such proximity to what the defendant was contractually obliged to perform that they are properly considered to be the defendant's place of work"). The fact or existence of a plan that the appellant had prepared in relation to any particular location does not necessarily mean that the relevant location is his place of work. Such a construction is contrary to the ordinary reading of s 16(1). 26 Further, in Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 , Walton J Vice President applied Boral Elevators and held: 304 The decision of Maidment J in Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators (unreported, 8 August 1996) is a case in point on the flexible, transient nature of employers' places of work and effectively endorses the comment of Fisher P, quoted above, that the emphasis of the Act always seems upon the place where work is being done. From time to time the defendant performed maintenance and repair work on an inclinator, but employees of the defendant were not at the premises either at the time of the accident or between the times specified in the summons. The sole question for the Court was whether the inclinator was the defendant's place of work within the meaning of s 16. Maidment J held that it was not, on the basis that the Act was not directed at general product liability, and did not require employers such as (for example) boat repairers to ensure the safety of the end product of their work as a boat, as opposed to as a place of work. However, his Honour considered that during maintenance, the inclinator would have been the employer's place of work (at page 9): Thus it is with an employer engaged in lift maintenance. Under s 16 he is required to conduct that maintenance work such that persons, not in his employment, are safe from risk whilst they are at his place of work. In the present case this includes ensuring that residents are not put at risk by the conduct of his undertaking while they were at his place of work as a place of work. This legislation does not require the employer to ensure that the product of his work is devoid of hazard. Thus, in my view, the obligation cast upon the defendant by s. 16 is confined to the periods during which maintenance work is being conducted. 27 Boral Elevators was also approved by Peterson J in WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997), a case which dealt with the concept of 'employer's place of work', again focusing attention (in keeping with the approach of Fisher CJ) on the performance of work. 32 The cases which Telstra relied on were largely premised on the Boral Elevators case. I consider that Boral Elevators is distinguishable on its facts. Elevators are constructed for the very purpose of being used by people who are not necessarily elevator constructors nor maintenance workers. In shops, hotels and public buildings, they are provided for use by the general public. Elevators would not normally be regarded as, at all times, a workplace of a lift maintenance company, which may have contractual obligations of maintenance to the owner of the premises in which the elevator is situated, but does not possess, own or control the elevator itself. In that situation, an issue may arise as to whether a particular defendant is an employer at a particular workplace under its control. However, the elevator would normally be regarded as (part of) the workplace of, say, the owner of the shop, hotel or public building where its employees use or operate the elevator. In those circumstances, the elevator would always be the workplace of such an owner and employer. If the elevator was being repaired, then during that period, it could also be regarded as the workplace of the lift maintenance company engaged on site. 33 In the case of Telstra's pit and pit lid, each exists to be used and accessed by Telstra employees, and is available for such use and access at all times. Putting aside other persons having access to the pit (presumably with the authority Telstra) the principal function of the pit is to carry out Telstra's activities. Each pit and pit lid is owned and controlled at all times by Telstra. An important purpose and function of the pit is to facilitate work being performed for Telstra's other assets, so that Telstra can provide services to its customers. After all, the pit has been installed to allow access to, and maintenance of, Telstra's underground network.