Case: WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370
Outcome: distinguished
In the case of WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370 , Schmidt J rejected the contention that a gas pipeline installed by an employer, which it may need to return to for maintenance, was at all times the 'place of work' of the employer. His Honour concluded at [168]: The mere fact that part of the defendant's gas reticulation system there lay in the ground, cannot be sufficient to make it at all times the defendant's place of work. Nor could the fact that at one time, the defendant had there performed work on the pipes, thereafter make that place the defendant's place of work. If that were the test, inevitably the result would be that anywhere that the defendant had at any time ever laid pipes or other parts of its system, would always remain thereafter the defendant's place of work, with ongoing obligations under s 16 of the Act resulting. 29 His Honour considered the legislation and its objects, the Minister's Second Reading speech, and the authorities concluding at [173]: I am satisfied that the situation which here arises for consideration is akin to those dealt with by Fisher P, Peterson and Maidment JJ. It seems to me that unless the defendant is present at a particular location, doing work on its gas reticulation system, or perhaps having someone else perform such work, as for example when contractors were engaged to install the goldline pipe for the defendant, when, on the evidence it appeared also to have its own employees present at least at some times, such a pipe and the ground in which it lies, is not the defendant's place of work. Section 16 of the Act is concerned with safety, while non-employees are present at an employer's place of work. It is not concerned with ensuring that the product of such work thereafter remains free from hazard. It follows that this location was only the defendant's place of work on 10 November and not thereafter, when I have found that non-employees were exposed to the risk here in question. 34 Take also the case of AGL Gas Networks [2003] NSWIRComm 370 which is similarly distinguishable. The pipeline existed, once constructed, for the sole purpose of conveying utilities such as gas or water. Unlike a pit and pit lid, it had a purpose other than that of being a dedicated and specific workplace of a particular employer. That distinction underpins why the pipeline was not, at all times, a workplace. It was only a workplace of the construction company while under construction, and only a workplace of the particular employer engaged to undertake maintenance when the pipeline was being repaired or upgraded. No part of the pipeline was at all times a dedicated place for employees to attend for work. 35 Therefore, in the above examples, and in the operation of the Act, it may be that a particular place may not be a workplace at all times, or on all occasions, for the purposes of the Act. Nevertheless, such places become workplaces, where they otherwise are not, upon a particular activity taking place; that is, where a particular employer engages employees to undertake an employment activity, such as a lift maintenance company using its employees to repair a lift in a hotel. 36 However, as I have already indicated, this is not the situation here with Telstra, which at all times owns (and controls) the pit and pit lid, and which has created the pit and pit lid for the primary purpose of permitting its employees to carry out Telstra's activities. Just because an employee is not in attendance at any given time does not mean a place is not a 'workplace' at other times. A factory, which may at times be shut or not operating, is nevertheless a dedicated place for employees to work, and normally would at all times be considered a workplace of the particular employer who employed people at that factory.