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CITE

Unreported Judgment

Byrnes v Workers' Compensation Regulator[2017] QIRC 1Thompson IC
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Byrnes v Workers' Compensation Regulator[2017] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Byrnes v Workers' Compensation Regulator [2017] QIRC 001
PARTIES:	Byrnes, Lynette (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2016/73
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	12 January 2017
HEARING DATES:	21, 22 and 23 November 2016 29 November 2016 (Appellant's Further Written Submissions) 12 December 2016 (Respondent's Further Written Submissions) 23 December 2016 (Appellant's Further Written Submissions)
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Thompson
ORDERS:	The Appeal is dismissed. The decision of the Regulator of 13 April 2016 is confirmed. The Appellant is to pay the Regulator's costs of and incidental to this Appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Decision of Workers' Compensation Regulator – Appellant bears onus of proof – Standard of proof – Balance of probabilities – Witness evidence – Appellant was a "worker" – Appellant suffered a personal injury – Whether personal injury arose out of or in the course of employment and if so was employment a significant contributing factor – Salary payment arrangements for attendance at Union meetings – Eligibility to attend Executive/Council meetings – Off–site activities – Interval case law – Definitions of induce and encourage – Not been established on the requisite standard of proof that injury was suffered in an interval between periods of employment – Appeal dismissed – Decision of Regulator confirmed – Appellant to pay Regulator's costs of and incidental to this Appeal.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 275, s 550 Education (Queensland College of Teachers) Act 2005 Education (Queensland Curriculum and Assessment Authority) Act 2014 State of Queensland (Queensland Health) v Q–COMP and Beverley Coyne (2003) 172 QGIG 1447 SPE Pty Ltd v Q–COMP and Garry Clifford Fuller – (C/2010/9) – Decision – http://www.qirc.qld.gov.au Commonwealth of Australia v Lyon (1979) 24 ALR 300 Kavanagh v Commonwealth (1960) 103 CLR 547 WorkCover Queensland v BHP (QLD) Workers' Compensation Unit [2002] QIC 27 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Comcare v PVYW (2013) 250 CLR 246 O'Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 Newberry v Suncorp Metway Insurance Ltd [2006] 1Qd.R 519 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 Comcare v PVYW [2013] HCA 41 Henderson v Commissioner of Railways (WA) [1937] HCA 67 White v Berrie [1923] NZLR 297 Westrupp v BIS Industries Ltd [2015] FCAFC 173 Mackenzie v The Workers' Compensation Board of Queensland (1993) 33 WCR 438 Wentzel v The Workers' Compensation Board of Queensland (1991) 31 WCR 102 Byrne v Australian Airlines Ltd (1995) 195 CLR 410 Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001 Harvey v Simon Blackwood (Workers' Compensation Regulator) & Anor [2016] ICQ 014 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 597 Qantas Airways Limited v Watson (No 2) [2010] NSWWCCPD 38 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 Codelfa Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
APPEARANCES:	Mr S. Reidy of Counsel, instructed by Holding Redlich Lawyers for the Appellant. Mr P. O'Neill, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

[1]
A Notice of Appeal was lodged with the Industrial Registrar on 3 May 2016 by Lynette Byrnes (Byrnes) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) dated 13 April 2016.

[2]
The Regulator's decision was to confirm the decision of WorkCover which was to reject Byrnes' application for compensation in accordance with s 32 of the Act as it related to her employment with Brisbane Catholic Education (BCE).

Relevant Legislation

[3]
The Legislation pertinent to this Appeal is:

"32 Meaning of injury

(1)
An injury is personal injury arising out of, or in the course of, employment if ‑

(a)
for an injury other than a psychiatric or psychological disorder ‑ the employment is a significant contributing factor to the injury."

Nature of Appeal

[4]
The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.

Standard of Proof

[5]
The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".

Evidence

[6]
In the course of the proceedings, evidence was provided by six witnesses.

[7]
The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.

Witness Lists

[8]
The witnesses for the Appellant were:

Terry Burke (Burke); and
Byrnes.

[9]
The witnesses for the Regulator were:

Judith Finan (Finan);
Warren Bath (Bath);
Colin O'Neill (O'Neill); and
Deidre Young (Young).

Agreed Matters

[10]
At the commencement of proceedings the Appellant tendered a document [Exhibit 1] which confirmed the following matters to which the parties had reached agreement:

"1. The 'worker' element is agreed, that is, Ms Lynette Byrnes is a worker within the meaning of the Workers' Compensation and Rehabilitation Act 2003 (Q).

The 'personal injury' element is agreed, that is, Ms Lynette Byrnes sustained a personal injury being a facture to the right shoulder, more particularly, a right proximal fracture of the humerus."

Appellant

Burke

[11]
Burke the Branch Secretary of the Independent Education Union of Australia ‑ Queensland and Northern Territory (Federal Union) and the Queensland Independent Education Union (State Union) having held those positions since 1994. Prior to taking up the Branch Secretary roles he had held other positions in the form of Council and Executive roles and was the President immediately prior to assuming the Branch Secretary roles.

[12]
Initially the State Union had been the dominant body in terms of processes however more recently the Federal jurisdiction became the more dominant of the two.

[13]
On 30 October 2015 the Union had scheduled three meetings, being:

Council;
Executive; and
Annual General Meeting.

[14]
The type of business transacted by Council and Executive was said to be similar in nature in that they considered amongst other things:

Committee reports; and
a range of compliance matters (Executive).

[15]
Burke's evidence went back to 1994 when an arrangement was put in place between BCE and the Union to facilitate the release of teachers from their schools to attend Union activities. The arrangement allowed for teachers to attend meetings of the Union with the employer continuing to pay their wages and the Union would meet the costs of a replacement teacher if one was required.

[16]
The arrangement had been reached following industrial disputation that occurred in 1993/1994 with certain documentation tendered in the proceedings regarding the disputation. The documents included:

Correspondence from the Union dated 14 December 1993 (under the signature of John Shepley ‑ Acting General Secretary) to BCE (Vince O'Rourke ‑ Director) [Exhibit 3] which included the extract:

"I write in respect to the QATIS Council members who are employees of the Brisbane Catholic Education Office…

If it is not possible for you to grant leave with pay, then the Union is prepared to provide payment for replacement teachers who are employed for the absent staff. We would require invoicing and identification of who those individuals were and how long they taught or were replacing existing staff on those days."

Correspondence from Villanova College dated 23 February 1994 (under the signature of Fr P.J. Wieneke OSA ‑ Rector) to the Union which included the following extract:

"As you know, I took note of Commissioner Nutter's recommendation and I released Gary Hammond to attend the last Council meeting held in school time. I will, in good faith, release Gary to attend the meeting this Friday, 25 February, with the understanding that QATIS Council will seriously consider the Commissioner's words, 'I don't think that the Union can unilaterally decide that they will hold ten (10) Friday meetings a year during school time and expect that everyone will be released for those periods."

Correspondence from the Union dated 2 March 1994 (under the signature of John Shepley) to BCE (Ilma Gargano) which included the extract:

"I would like to negotiate with you the following matters. The respective five days that will be in employer time and the five days that will be in employee time. Secondly the process of payment for either release or replacement cost, whichever is greater, for our Council members to attend on those days when they are in work time."

Correspondence from the Union dated 14 March 1994 (under the signature of John Shepley) to BCE (Vince O'Rourke) which included the following extracts:

"Re ‑ QATIS Council Member Release Time

The Principles of the agreement reached are as follows:

That QATIS Union Council meetings would be held in 50% of the employer's time and 50% of the employees time.

That there would be a maximum of 10 Council meetings per annum to which this arrangement would apply.

That it is recognised that these arrangements would be reviewed annually and would be discussed in October of each year between the employers and the Union.

…

Financial Arrangements

The employer will agree to provide leave without pay for the respective Union Council meeting dates in employer time and the Union will reimburse the employee involved for their loss of salary. If the cost of a replacement teacher is greater than the salary of the Council member who has been released on leave without pay, the employer shall invoice the Union for these additional costs.

The employer will encourage Principals of their schools (where this relevant) to provide replacement teachers when the Union Council member is absent in employer time.

As you may be aware the Union Council has already met three times in 1994 (Sunday, 6 February, Sunday, 13 February, and Friday, 25 February). As I indicated to Ms Gagarno and other officers present, much of the Union's time and energy has been spent on resolving difficulties with our Rules as they are inconsistent with the Industrial Relations Act.

I would hope that now this agreement has been reached that we may be able to proceed in resolving all industrial matters that are currently before us. On behalf of the Union Council and Executive, I would like to thank you and your colleague directors for their agreement to this matter."

Correspondence from the Union dated 30 March 1994 (under the signature of Burke ‑ Acting General Secretary) to BCE (Ilma Gargano) reproduced in full:

"I wish to clarify arrangements regarding wage and salary payment to members of Union Council when they attend an all day meeting of Union Council.

Specifically I request the following:

(a)
That BCE pay the employee as normal.

(b)
That BCE invoice QATIS for the cost of the relief staff employed to cover the teacher's absence.

We would require itemised details of the names of, staff members released, the relevant dates and the relief staffs' classification level to satisfy our auditors.

I believe that this arrangement will be to the benefit of both employee, employer and Union and will make easier such matters as taxation payments, issuing of group certificates and the like.

I understand that Union Council members concerned will have need to apply for special leave with pay. If there is a particular wording for such leave I would request that you advise me so I can inform the relevant persons.

Many thanks for your attention to this matter."

[17]
Evidence was given from Burke that the parties had an arrangement that the agreement around the release of staff would be reviewed annually however to his knowledge there was only one review and that had taken place in 1995.

[18]
The arrangement was that an employee of BCE would be able to attend the Council meeting without any effect on their accruals or needs to be made to their fortnightly pay. From the point of the Union they were not required to make the payment and then issue group certificates as if the member was an employee. The teacher would be released and the Union would pay whatever was the replacement cost. From the Union's perspective it was Burke's evidence that in terms of the agreement "it was easier for the employing authority to actually continue to employ the person as a paid employee, on the day".

[19]
In terms of current arrangements the Union had forwarded correspondence to Byrnes' school on 9 February 2015 in which they advised she was a current member of Council and Branch Executive and provided details of meeting dates for 2015. These particular dates in 2015 identified three week day and four weekend meetings, making reference to the understandings reached with the "employing authorities" some years earlier and of the usual practice regarding the cost reimbursement to the employer. The penultimate paragraph went on to state:

"I would like to take this opportunity to thank you for your co‑operation in this matter. Members of our union's governing bodies are elected by your employees to represent their interests in educational and industrial matters and as such hold a significant responsibility within the industry,"

[20]
Inherent in the arrangements was a courtesy towards the recognition of the cooperation of the employer and the intrusion into the school program for that day.

[21]
The Union's governing bodies had the responsibilities and powers to represent the interests of employees in non‑government schools in both educational and industrial matters and the democratically elected members in Burke's view made a "contribution to the furtherment of good education practice and operations."

[22]
The election process was a state wide ballot for the Branch Executive and district ballot for Council.

[23]
The Union is party to a Federally registered Agreement with the Catholic employing authority which contained provisions supportive of the role of the Union with a number of facilitative provisions to enable people to participate in industrial training which includes paid leave of absence for employees to attend a variety of industrial and professional development. There exists provisions for a "Union Chapter" in the workplace but the Union has not sought to include arrangements for Council/Executive meetings in the Agreement as those arrangements have operated since 30 March 1994 without an issue being raised. Once a member of the Union is elected the rules of the Union make it clear that it is their duty to attend governing body meetings.

[24]
Under cross‑examination the witness confirmed that Byrnes was an elected member of Council from the Moreton area and the Branch Executive of the Queensland Branch. The period of the elected term for both offices is four years and a member is required to nominate for the positions with their nomination forms requiring two seconders [Transcript pp. 1‑30 and 1‑31]. Upon attendance at Council, Executive or Annual General Meetings there is no requirement or agreement that required the Byrnes to report on her attendance to the school management although Burke personally encouraged representatives to have a good working relationship with the Principal and to have "ad hoc" meetings with the leadership of the school [Transcript p. 1‑32]. When Byrnes reported back to members at St Mary's on her attendance at Union forums, this was "not specific to her duties as a teacher" [Transcript p. 1‑33].

[25]
On the operations of the agreement it was a fundamental concern of the Union that if members took leave without pay to attend Union meetings that would have cast the Union in a position of being an employer of those people for those days. The outcome from the agreement was convenient for both the Union and the members [Transcript p. 1‑34]. The reimbursement of the substitute teachers assisted in getting the employer's cooperation in releasing members to attend Union meetings [Transcript p. 1‑37]. The fact that the employees were paid their ordinary wage for the day effectively meant they were on the employer's books [Transcript p. 1‑38]. The employer had no control over the Byrnes' activities at the Union meetings and had no knowledge of what she may do or say at the meetings. The same would apply for other absences from the site [Transcript p. 1‑58].

[26]
On 30 October 2015 there were three meetings (Council, Executive and Annual General Meetings) of which agendas were tendered in the course of cross‑examination [Exhibits 12, 13 and 14]. The witness was required to provide evidence with regards to specific agenda items that included:

Committee reports;
membership;
finance and administration;
transmission of employment to IEUA‑QNT;
Government and Risk Management;
division branch reports;
IEUA‑QNT Committee Reports;
industrial matters;
branch organising; and
finance [Transcript pp. 1‑40 to 1‑49].

[27]
In terms of attendance at the Annual General Meeting, it is open to any member of the Union [Transcript p. 1‑49].

[28]
In re‑examination it was the evidence that any member of Council or Executive were able to raise matters regarding their schools at these meetings "however, it's not ‑ it doesn't occur very often, but it does occur, but they have an absolute right to do that". Byrnes' attendance at Union meetings had never been refused by her employer.

Byrnes

[29]
Byrnes commenced teaching in 1974 and had been at St Mary's College since 1976, currently in the role of Middle Leader, Business and Technology reporting directly to the Deputy Principal. Byrnes holds (and did at 30 October 2015) positions on the Union Council and Branch Executive.

[30]
On 30 October 2015 Byrnes for some unknown reason was involved in a fall at the Christie Centre in Brisbane resulting in the fracture of her shoulder, crushed bone and a rotator cuff injury requiring her being transported to St Andrew's Hospital. Following the initial treatment and feedback on her injuries she contacted the school reception to inform them of what had occurred. On the Monday following the incident she went to St Mary's College where she had a conversation with her line manager (Bath) who enquired of her whether she had contacted the school to fill out an accident report. Byrne conceded it was the usual requirement for the person involved in an accident to complete an accident report but on this occasion that was impossible for her as the writing arm had been injured.

[31]
On 30 October 2015 when the incident had occurred she had attended a number of Union meetings for which the employer paid her wages for the day. Byrnes had been attending such meetings since 2004 without ever being required to complete a leave application form at the College. There had been a process of notification in place which began with correspondence from the Union to the College advising of the dates for Union Council and Branch Executive Meetings. Such correspondence was forwarded to the Principal at St Mary's College (Young) on 9 February 2015 confirming the following dates for that year:

Sunday, 8 February Friday, 28 August

Sunday, 15 March Friday, 30 October

Sunday, 24 May Saturday, 28 November

Friday, 17 July

[32]
As a courtesy to her line manager the witness would remind him of the dates ahead of time.

[33]
Byrnes had previous involvement in a body called the Learning Area Reference Committee (LARK) which had responsibility for the oversight of syllabus development and renewal and when attending those meetings it was her evidence that she was not performing any duties associated with her role at St Mary's. The LARK meetings were held four times a year and the school would pay her wages with reimbursement for her replacement teacher being made by the organisation in which LARK was embedded. Byrnes gave further evidence regarding the arrangements with the employer which facilitated her attendance at Union meetings dating back to 2009, providing copies of email exchanges which supported the evidence [Exhibits 15 to 23 inclusive].

[34]
Byrnes' day commenced on 30 October 2015 with an attendance by her at St Mary's College where she left some school work for her year 10 business class and had a discussion with the workplace health and safety officer about an issue arising from playground duty the previous day. She then proceeded to drive to Brisbane for the purposes of attending the Union meetings.

[35]
On previous occasions following attendance at Union meetings Byrnes had returned to the school to undertake tasks such as the supervision of school dances which she described as one of her priorities often staying past 10.00 pm in the evenings. In 2011 when a school sports carnival clashed with a Union meeting, she chose to attend the carnival and disregarded the Union meeting.

[36]
Byrnes produced documentation [Exhibits 27 and 28] which confirmed that whilst attending Union meetings the employer had continued to pay her wages without any notation on the document that she had been absent from the school. Further a staff notices document (dated 30 October 2015) [Exhibit 29] identified her absence from school on that day as "in‑service".

[37]
During her time as a member of the Union bodies there had only been one issue regarding her attendance at the meetings when an Acting Principal (Paul Wruck) had given an ultimatum of resigning from one of the Union positions or the Queensland College of Teacher's Professional Standards Committee which Byrne described as "push back". The issue was later resolved with the pressure from him being "eased back". There had never been any indication from the employer that her attendance at the Union meetings was discretionary on the part of the employer. A similar arrangement regarding her attendance at the Professional Standards meetings had been entertained by the employer with her appointment to this position being at the hands of the Union.
[38]
According to the witness the professional responsibility of a teacher included a requirement to "maintain their professional standing, their knowledge of their teaching area, and to keep up to date with latest curriculum developments" and to engage in co‑curricular activities within the school environment.

[39]
Under cross‑examination Byrnes gave evidence regarding the role and business of the Union which included industrial matters, education processes and changes to curriculum all of which featured in Council and Executive meetings [Transcript p. 1‑79]. Byrnes had through her evidence‑in‑chief tendered a number of emails relating to communications with the College administration around her attendance at Union meetings but provided no emails about giving feedback to the school Principal and other levels of management. Such information according to Byrnes was given at middle leader committee meetings [Transcript p. 1‑80]. The feedback provided was as a result of her participation at Union and other meetings and at times addressed problems that were being faced by the school in trying to address overload in the curriculum [Transcript p. 1‑80]. Byrnes conceded in undertaking a search of her emails she had only found one where she had raised issues with a Principal or Deputy Principal and that had arisen from her role on the education committee rather than the Union role [Transcript p. 1‑80].

[40]
According to Byrnes neither St Mary's College nor BCE had any discretion about whether she attended Union meetings and it was her understanding that "BCE had an arrangement to allow attendance" [Transcript p. 1‑81]. There had never been a direction or request from the school or her employer to attend the meetings [Transcript p. 1‑82]. Byrnes "assumed" that her contract of employment was as a teacher and middle leader and contained no reference to her Union activities. The same applied to her other roles in curriculum and other educational matters [Transcript p. 1‑84]. A proposition was put to Byrnes if the Union had not reimbursed St Mary's in respect of a replacement or supply teacher, she would be placed in a situation that if she wished to attend at the Union meetings she would have to apply for leave without pay to which Byrnes referenced the arrangement since 1994 as applying and had no knowledge regarding what may apply in the circumstances of the proposition [Transcript p. 1‑86]. Byrnes had an involvement in another organisation referred to in evidence as the "State Panel" which allowed her to attend meetings in school time without deductions to pay [Transcript p. 1‑84].

[41]
Byrnes did not accept the proposition that there was "no encouragement" from the Principal or school management to attend Union meetings [Transcript p. 1‑87] nor that her attendance at Union meetings related to only conducting Union business as at these meetings there was a considerable educational element which had a throwback to her middle leader role [Transcript p. 1‑89]. The agendas for the meetings of 30 October 2015 had been received in the mail prior to her attendance but she had no knowledge whether the school had been provided with copies of the agendas. In the case of Byrnes she did not provide a copy of the agendas to the school management or the Union chapter at the school. At least half of the items on the agendas would be confidential matters relating to Union businesses [Transcript p. 1‑90].

[42]
In discussions with a WorkCover customer advisor following her accident, Byrnes informed her that "There is some industrial agreement that I'm allowed to go to those meetings. I just get paid by BCE as normal. I was there for a meeting". With regards to the fall her evidence was she had no knowledge of why she fell but had told the customer advisor she had "felt the sensation I was going to fall" [Transcript p. 1‑93]. In response to a question from the customer advisor about an encouragement or request to attend the Union meeting she assumed the answer she gave in that "they've never discouraged it" was the answer she had given bearing in mind she had no record of the exchange [Transcript p. 1‑94].

[43]
In re‑examination Byrnes confirmed she had never seen the notation of the WorkCover customer advisor regarding the conversation of 5 November 2015.

Regulator

Finan

[44]
Finan the current Principal of St Mary's College commenced her employment at the College in January 2014 as the Deputy Principal. The management hierarchy at the time of commencement was:

Principal;
Deputy Principal;
Assistant Principal ‑ religious education; and
Assistant Principal ‑ administration.

[45]
As Deputy Principal it was her role to interact with Byrnes in connection with her attendance at Union and other meetings. Early in her appointment a letter had come from the Union identifying the number of meetings that Byrnes was required to attend for the upcoming year. Finan was unfamiliar with such a process and took some advice from the Principal (Young) about how to manage the situation.

[46]
As Byrnes's direct line manager Finan neither requested nor directed her to attend Union meetings. Finan had no understanding of how Byrnes was appointed to her Union role or whether the Union role was voluntary or a paid position. Finan had not since developed any understanding around Byrnes' Union activities.

[47]
Finan was aware of the Union structure within the College and in her roles as Deputy Principal and Principal had a level of involvement with the Chapter representatives as well as the Union area representative. In her time at the College she had never had cause to have any dealings at the school with Byrnes about Union business including her roles with the Union Council and Branch Executive.

[48]
In February 2015 correspondence was received from the Union about Byrnes' Union attendance at Union meetings for the year ahead which she handed on to the Deputy Principal and whilst that ended her involvement in the matter she was aware of the replacement arrangements with reimbursement from the Union being received by the College. In her roles at the College she had no awareness of what Byrnes was doing at Union meetings and nor had there be a requirement for Byrnes to report back to the school management what had been discussed at the Union meetings.

[49]
Under cross‑examination Finan accepted that she may have received information from Byrnes how the arrangement for attending Union meetings operated. Finan had no knowledge about who had entered into the arrangement but in her role as Deputy Principal had maintained the practice [Transcript p. 1‑103]. Byrnes had kept her informed of the upcoming meetings but the witness did not accept her involvement had included granting permission or authorisation of Byrnes to attend the Union meetings [Transcript p. 1‑104].

[50]
On the Staff Notices circulated throughout the College, Finan's evidence was of no involvement in the preparation of the documentation other than to read them [Transcript p. 1‑105]. When taken to Staff Notice ‑ Term 3 Week 7 Friday 29 August 2014 [Exhibit 30] the witness explained that reference to Byrnes' absence as "in‑service" was as a result of a drop down menu that provided limited choice. The system was from BCE and called Timetables [Transcript p. 1‑106]. "In‑service" according to the witness could be applied to "any activity that you're off the campus where you're doing something related to your business". The meaning "business" could apply to anything not related to medical, long service leave or meetings. It was really a generic term for "something you are off doing" [Transcript p. 1‑107]. BCE was supportive of teachers involved in professional bodies [Transcript p. 1‑108].

[51]
In re‑examination the evidence was that attendance at certain professional forums would occur without reimbursement from those organisations.

Bath

[52]
Bath currently employed in the role of Executive Officer, Governance and Policy at BCE however in April 2015 he took a 15 month secondment to the role of Deputy Principal at St Mary's College which finished in June 2016. In that role Byrnes was a direct report to him which required an involvement with her to ensure staffing for her classes on days when she attended Union meetings. With regards to payment for such attendances BCE would pay her salary and the Union would meet the costs incurred for the replacement teacher. The Union would provide correspondence to the College detailing the various dates for meetings which Byrnes was to attend during the year which were a combination of school time and weekends, with Byrnes requesting permission from Bath to attend the meetings that were held in school time.

[53]
In October 2015 there had been protected industrial action occurring at the College which had an impact on the ability to cover staff who were on sick or other leave at the time resulting in a later than usual approval of Byrnes' request for leave to attend the 30 October 2015 Union meeting.

[54]
During his time as Deputy Principal he had not at any time requested, directed or instructed Byrnes to attend any Union meetings. If the Union had refused to fund the cost of a replacement teacher the matter of Byrnes' attendance would have been referred to the Principal to determine approval or not. Byrnes' duties as a Middle Leader according to Bath did not require her attendance at Union Council or Branch Executive meetings.

[55]
Under cross‑examination he repeated his earlier evidence of Byrnes contacting him prior to her scheduled attendance at Union meetings, about arrangements made for a replacement teacher to be engaged and the Union invoiced for the costs [Transcript p. 2‑12]. At or around 30 October 2015 there were additional absences as a result of industrial action which meant his response to Byrnes' request to attend the meeting on that date was not immediate. The request from Byrnes [Exhibit 23] had stated:

"Hello Warren

As per correspondence received from QIEU‑NT at the beginning of the year, the AGM occurs this Friday 30th. I have already notified the meeting organiser that I cannot inform them of my attendance until closer to the day.

I am aware that we cannot guarantee replacement staff until the day before, or day of, any meetings or excursions. I would appreciate as early a response to my ability to attend as is possible.

Regards, Lyn." [Transcript p. 2‑12]

[56]
Bath was of the view that Byrnes' email had shown consideration for the position he was in at the time with the staffing arrangements [Transcript p. 2‑13].

[57]
Staff members at St Mary's College, including Byrnes, had been involved with bodies such as the Queensland Curriculum and Assessment Authority and attended meetings on and off‑site for which they were not required to make application for leave and received their normal day's pay [Transcript p. 2‑15]. Those meetings in the case of Byrnes were "specifically related to her subject areas, so the process for verification, as I said, or moderation, which are processes of Queensland Curriculum and Assessment Authority, are in the particular area that that teacher has expertise and teaches" [Transcript p. 2‑15].

[58]
Bath in the course of his professional vocation as a teacher had been on the business organisation and management panel which he said was beneficial to his role as head of department for business (at the time) but conceded it was not part of his duties in that role [Transcript p. 2‑16]. There were different types of professional learning opportunities that occurred which could all be put "into one basket, to be honest ‑ professional learning, in service whatever you want to call it" [Transcript p. 2‑18].

[59]
Bath became aware that Byrnes' injury, possibly on the Monday after it occurred but did not recall talking to her on that day [Transcript p. 2‑19]. He had no involvement in completing an Incident/Injury Form and whilst such form could be filled out by a colleague or member of staff it was his observation that the staff member injured would usually complete the form [Transcript pp. 2‑20 and 2‑21].

[60]
In October 2015 due to protracted industrial action it was a challenging time for management and staff although that had no impact on facilitating Byrnes' attendance at the Union meeting or his support for such attendance [Transcript p. 2‑22].

[61]
In re‑examination it was Bath's evidence that if he was to be absent from school he would undertake preparation in advance which would be provided to the relief teacher along with instruction. There were definite benefits for the school for an employee to attend bodies such as business organisation and management panels given it relates to subjects taught at the school.

O'Neill

[62]
O'Neill the Manager of Employee Relations with BCE gave evidence that his role involved supporting and advising on matters relating to employment law for the Archdiocese of Brisbane as well as enterprise bargaining and other issues with the Union.

[63]
On the attendance of Byrnes at the Union meeting on 30 October 2015 it was his understanding that the school supported participation in the Union Executive where attendance was required on a number of school days each year in addition to a number of weekends. The Union would provide the costs of backfilling those employee's positions with relief teachers.

[64]
The Collective Agreement in force on 30 October 2015 at clause 6.14 allowed employees to access various training sessions provided by the Union on matters including:

dismissals;
participation in meetings with employers;
provisions of the agreement; and
accessing classification reviews.

[65]
The Collective Agreement at clause 6.10.7 allowed for leave to be granted for emergency and natural disaster leave and in particular leave for attendance at emergencies which at clause 6.10.7(a) stated:

"An employee who is a member of the State Emergency Service, voluntary member of a local fire fighting unit, members of a Rural Fire Brigade, auxiliary of a fire brigade, honorary ambulance officer or St John ambulance volunteer shall be granted paid leave when called out for emergencies, to fight local fires or where an emergency situation or state of disaster had been declared under the Public Safety Preservation Act 1986 (Queensland) or the Disaster Management Act 2003 (Queensland)."

[66]
The application of the previously mentioned clause allowed for the employee to be paid by BCE whilst undertaking these roles. Similarly clause 6.11.1(a) for teachers that were members of the Defence Force Reserve provided the same benefit.

[67]
On the arrangements in place with the Union regarding attendances at Union meetings, such arrangements only became known to him after 30 October 2015.

[68]
Under cross‑examination it was the evidence that there were a number of situations where an employee may absent themselves from the College for both school and non‑school related matters which included payment and without pay. In October 2015 the arrangement that existed for attendance at Union meetings on ordinary pay were "local level arrangement[s]" [Transcript p. 2‑38]. O'Neill was aware of the Australian Catholic Council for Employment Relations and of documentation that asserted positively the right of employees of Catholic organisations to be involved with their unions [Transcript p. 2‑40]. In the case of Byrnes' involvement with the Union, it was O'Neill's evidence "that we would certainly provide and facilitate for those activities to go on, however we wouldn't necessarily have any ‑ any involvement in those activities" [Transcript p. 2‑40].

Young

[69]
Young currently the Principal at McAuley College having taken up the position in April 2016 after having been the Principal at St Mary's College for a period of eight years with the last two years having been spent on maternity leave. In her time at St Mary's College the school structure altered to incorporate a middle leadership role of which Byrnes was a participant giving her "some leadership responsibility for overseeing particular subject areas, developing the curriculum" and working closely with other staff to ensure best learning and teaching outcomes were being delivered to students.

[70]
Byrnes whose main area of responsibility fell under the business umbrella also according to Young had a role in the Union although she was unfamiliar with the detail of that role in respect of it being with the State or Federal body. At the College there was strong union presence which included a Chapter whose representatives were elected by staff members. In addition there was a Union Organiser for the region who would visit the site on occasions to brief staff on Union matters.

[71]
At times whilst Principal she would be involved in meetings with Chapter representatives or sometimes the Union Organiser but had no cause to at any time deal with Byrnes on Union matters or receive a brief from her on a Union matter. From the beginning of her appointment at the College there had been an arrangement in place where a letter would be received from the Union at the start of the year which advised of the dates for the upcoming Union meetings which usually had four occurring on school days and four on weekends and of the Union commitment to provide teacher release payments to cover Byrnes' absence at the meetings.

[72]
On the matter of Byrnes' Union activities, it was Young's evidence they would fall under professional development. If a replacement teacher was not made available by the Union it was unlikely that her attendance at these meetings would have been seen as a priority in terms of professional development for staff and "there might have been some rethinking of where it fitted within the priorities".

[73]
Byrnes aside from her Union involvement had been "quite heavily" involved in a number of professional bodies in her role as a senior teacher which had related to her subject areas in and around syllabus and curriculum development, which had a direct benefit to the College.

[74]
During her time as Principal at the College she had no cause to give instruction or request Byrnes attend Union meetings nor did she feel the College had benefited from those attendances. Byrnes had not provided any formal report back although there may have been times over a cup of tea in the staff room where there may have been a conversation with Byrnes around something that had been raised at the meetings.

[75]
Whilst there was a benefit in terms of belonging to professional groups and professional development there was a time when the needs of the classroom had to be weighed up against those other matters which prompted an email from Young in February 2011 in which Byrnes was informed:

"Hi Lyn

This looks fine…

I have not received a letter from QIEU or the LARCS to let me know the dates of your term meetings. Interesting because I normally have received something by now. I did get your email with some dates (LARC I think).

I suppose, given the commitment to these eight days (I think) already, it will be difficult to say yes to future consultations such as this, but we can determine this when the time comes.

Can you see Paul Wruck to flag the date and time? Paul is aware of the purpose and my approval.

Regards, Deidre."

[76]
In terms of Byrnes' activities when in attendance at Union meetings, Young as Principal had no input or control over what she did at those meetings.

[77]
Under cross‑examination Young confirmed that she had facilitated the arrangements at the College to allow for Byrnes' attendance at Union meetings [Transcript p. 2‑48]. Young recalled that Byrnes had attended a number of other meetings where she had been released on pay which included the Queensland Curriculum and Assessment Authority as well as a committee that would look at developing syllabus documents as part of a review process. Young was not aware that in attending those meetings Byrnes had been a nominee of the Union [Transcript p. 2‑50].

[78]
Young had a strong belief in professional development and as a senior teacher and leader she expected Byrnes would have an understanding of potential developments in the curriculum area. The attendance at Union meetings was a source of personal development for Byrnes but Young was reluctant to say "it had strong ties to our priorities at school" [Transcript p. 2‑51].

[79]
Young was familiar with what would be discussed at Union meetings, having attended a "handful" of meetings in the past giving evidence they would include:

support teachers and non‑teachers in the workplace;
work hours;
work intensification; and
maybe curriculum. [Transcript p. 2‑52]

[80]
In terms of professional development the involvement in State Panels was seen by Young as "some of the best professional development staff can be involved in" [Transcript p. 2‑52]. Co‑curricular activities involving teaching staff is not part of their duty statements but such involvement enhances the holistic education the College delivers to their students [Transcript p. 2‑53].

[81]
Young accepted there was benefit in having a good relationship with the Union and in releasing Byrnes to attend Union meetings to her knowledge there had been no issues around the supply teachers [Transcript p. 2‑54]. The reference to the term "in‑service" was on the same "par" with personal development attendance [Transcript p. 2‑55]. On the Union attendance, it was Young's evidence it did in terms of professional development fit comfortably with the priorities of the school [Transcript p. 2‑56].

Submissions

[82]
Written outline of submissions were provided to the Commission and addressed orally by the parties. In addition each party provided further written submissions beyond the completion of the hearing.

Regulator

[83]
The Appeal lodged by Byrnes sought to set aside the decision of the Review Unit (dated 13 April 2016) which confirmed her application for workers' compensation be rejected and the Appeal is opposed by the Regulator who seeks that:

the Appeal be dismissed;
the Review Unit decision of 13 April 2016 be confirmed; and
Byrnes pay the Regulator's costs of and incidental to the Appeal.

[84]
The Appeal under the Act is not an appeal strictu sensu but a trial of the claim of the injured worker which requires the Commission to be satisfied that the factual situation is such that the worker had suffered an injury within the meaning of the Act. The onus of proof fell upon the Appellant with the standard of proof being on the balance of probabilities. See:

State of Queensland (Queensland Health) v Q‑COMP and Coyne^[1]; and
SPE Pty Ltd v Q‑COMP and Fuller^[2].

Issues for Determination

[85]
The Regulator conceded that Byrnes:

was a "worker" for the purposes of the Act; and
sustained an injury to her right shoulder.

[86]
The Appellant in opening conceded there is no contention that the injury arose out of her employment at St Mary's College.

[87]
Therefore the issue is whether Byrnes' injury occurred in the course of her employment at St Mary's College and whether her employment at the College was a significant contributing factor to her injury.

Regulator's Contentions

[88]
The only link that Byrnes appears to emphasise and rely upon between the event giving rise to the injury and employment was that:

it occurred on a day which was a usual day of work for her; and
she received authorisation (tacit or implicit rather than explicit) to attend the Council/Branch Executive meetings and the Annual General Meeting held on 30 October 2015; and
she was paid her ordinary pay for the day.

None of these facts are sufficient to constitute the claim that the injury occurred in the course of her employment.

[89]
The submission identified factual findings open to the Commission that included:

voluntary decision to accept nomination to the Union positions. No inducement or encouragement from BCE. Voted into position by Union members;
the Union role extended far beyond the boundaries of her role as a teacher and Middle Leader at St Mary's College;
attendance at Union meetings was participating in and performing Union work/business not related to her teaching duties nor was the attendance as a St Mary's College representative;
on 30 October 2015 there were three meetings with agendas;
the location of the Union meetings had been arranged and paid for by the Union without the College or employer involvement;
St Mary's College and BCE had no control over Byrnes' actions or activities in the course of her attendance at off‑campus extra‑curricular activities;
no requirement, request or occasion where Byrnes had to report back to the College or BCE about what had occurred at the meetings; and
the Union activities were something quite distinct and separate from her employment duties.

[90]
The description by Byrnes on how the injury occurred appears to confirm there was nothing about the venue that caused her to fall and it was in fact likely that she had some type of fainting spell that cannot be related to her employment duties as a teacher at St Mary's College therefore her employment could not be viewed as being a significant contributing factor.

History and Background

[91]
In the period between 1993 to 1994 negotiations occurred between BCE and the Union around an arrangement to facilitate the attendance of BCE employees who were members of the Union Council and Executive and whilst the Regulator does not question the past operation of that arrangement, the existence of the arrangement does not mean that Byrnes was acting in the course of employment at the time of her injury.

[92]
A chronology of events critical to the circumstances of the Appeal documented the following:

Union correspondence of 9 February 2015 to the Principal of St Mary's College identifying meeting dates for 2015;
three Union meetings were scheduled for 30 October 2015 including the Annual General Meeting;
on 26 October 2015 Byrnes sought by email approval from Bath to attend Union meetings on 30 October 2015;
venue for the meetings was paid for by the Union;
shortly after arrival at the venue Byrnes had some form of syncopal or pre‑syncopal episode and had fallen thereby sustaining the injury to the right shoulder;
a Claim for Workers' Compensation was lodged on 3 November 2015 and rejected by WorkCover on 9 December 2015; and
the Regulator's Review Unit confirmed the decision of WorkCover on 13 April 2016.

Relevant Legislation

[93]
It was submitted the relevant legislation is s 32(1) of the Act:

"32 Meaning of injury

(1)
An injury is personal injury arising out of, or in the course of, employment if ‑

(a)
for an injury other than a psychiatric or psychological disorder ‑ the employment is a significant contributing factor to the injury.
(b)
for a psychiatric or psychological disorder ‑ the employment is the major contributing factor to the injury."

Summary of Evidence

[94]
An overall summary of the evidence given in the proceedings of both the Appellant and Regulator's witnesses featured in the outline of submissions with the Commission urged to prefer the evidence of witnesses called by the Regulator where there was conflict between that evidence and the evidence given by Byrnes.

In the Course of Employment

[95]
Given the concession that Byrnes' injury had not arisen out of her employment, the personal injury must have occurred in the course of her employment with BCE.

[96]
As to what is meant by the phrase "in the course of employment", in Commonwealth of Australia v Lyon^[3], Deane J said:

"Injury in the course of employment means an injury is sustained while the worker is engaged in the work he or she is employed to do or in something which is concomitant of or reasonably incident to his employment to do that work (Kavanagh v Commonwealth (1960) 103 CLR 547 at 559; Commonwealth v Oliver, supra, at 358). The course of employment is a temporal concept and it is unnecessary that there be any casual connection between the work which the employee employed to do and the injury which sustains (Kavanagh v Commonwealth, supra, at 555, 570; Commonwealth v Oliver, supra, at 359, 362). The scope of what is within it depends upon 'the sufficiency of the connection between the employment and the thing done by the employee' which 'cannot but remain a matter of degree, in which time, place and circumstances as well as practice, must be considered together with the conditions of employment' (per Dixon J, Whittingham v Commissioner of Railways (WA)(1931) 46 CLR 22 at 29, and see generally Stephen J Bill Williams Pty Ltd v Williams [1972‑73] ALR 303; 126 CLR at 158‑9."

[97]
An injury in the course of employment means an injury is sustained while the worker is engaged in work or they are employed to do something which is concomitant of, or reasonably incidental to, the person's employment to that work and it is not sufficient to simply establish a mere temporal relationship or put alternatively it may not be enough that the workplace is simply the setting or context in which an injury occurs. Authorities cited in support of the Regulator's position included:

Kavanagh v Commonwealth^[4]; and
WorkCover Queensland v BHP (QLD) Workers' Compensation Unit^[5].

[98]
In this case because of the particular circumstance the principles in Hatzimanolis v ANI Corporation Ltd^[6] and Comcare v PVYW^[7] are not relevant because it does not involve an interval of work or an interlude within a period of work which was supported the decision of O'Loughlin v Linfox Australia Pty Ltd^[8].

[99]
The contention of Byrnes that as the injury had occurred on an ordinary work day for which she received her ordinary pay and for which she had permission to be away from the workplace was sufficient to constitute the injury occurring in the course of her employment was refuted by the Regulator on the basis of the previously mentioned authorities which indicate her circumstances were not sufficient for a finding of a connection with the workplace and the injury. Further in terms of the situation it was the case that:

Byrnes' decisions around Union membership and the Union role were entirely voluntary on her behalf;
a Union Chapter was present on site that dealt with school based issues with Byrnes playing a limited role in the school based issues;
Byrnes' attendance at the three Union meetings on 30 October 2015 was purely for the purposes of Union business;
matters to be addressed on 30 October 2015 had nothing to do with Byrnes' role or duties at St Mary's College;
Byrnes was not engaged in actual work duties at the time of the incident;
Byrnes was not on the employer's premises at the time of injury but was on premises that had been hired by the Union;
BCE had no control over her actions, activities or conduct during the course of the day;
in cases identified in clauses 6.10.7 and 6.11(a) of the Collective Agreement employees are paid ordinary pay for the period they are away from their normal duties and attend locations under the control of someone other than the employer to perform services for someone else;
it cannot sensibly be suggested that BCE be responsible for covering an injury under its workers' compensation policy for an injury sustained whilst undertaking State Emergency Service (SES) or training with the Army Reserve yet a distinction is sought to be drawn on her Union activities; and
the significant factor with BCE paying Byrnes' ordinary pay on her day of absence is that the replacement costs are met by the Union.

[100]
As a consequence of all the points raised the attendance of Byrnes at the meetings on 30 October 2015 could not be viewed as being "incidental" to her employment and therefore her injury could not be seen to occur in the course of her employment.

Other Activities

[101]
The attempt by Byrnes to "muddy the waters" by raising involvement with other bodies such as QCT, QCAA and State Panels was simply not relevant as her injury was not sustained when attending an event of this nature. The mechanisms in place which secured Byrnes' attendance at events of this nature were not raised in these proceedings.

[102]
Of more significance was the evidence of Bath and Young about the nature of BCE employees' involvement in these types of activities with the benefit going to not only the employee but also the school itself. These types of events based on the evidence may be incidental to employment.

[103]
As the Commission was not called upon to determine whether an injury at one of these events was in the course of employment, it was strongly submitted that this evidence should be disregarded.

The Employment must be a Significant Contributing Factor to the Injury

[104]
It is necessary for Byrnes' employment to be a significant contributing factor to her injury and for that to occur employment must be important or of consequence. It has previously been held that "significant" does not mean "large", "great", "weighty" or "substantial" but more appropriately are terms such as "important" or "of consequence".

[105]
The composite phrase at s 32 of the Act "significant contributing factor" suggests some linkage between the employment and the injury. In Newberry v Suncorp Metway Insurance Ltd^[9] Keane JA stated:

"[27] It cannot be disputed that, when s 32 of the WCRA speaks of 'employment' contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to 'what the worker in fact does during the course of employment'. The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.

…

[41] That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been 'a significant contributing factor to the injury'. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment'."

[106]
The Regulator in relying upon also the matter of Croning v Workers' Compensation Board of Queensland^[10] submitted that when considered with the previously mentioned factual analysis the employment of Byrnes with St Mary's College was clearly not a significant contributing factor to her injury and even if it could be somehow linked back to her employment, it seems that the location of her fall was merely the setting or background to what appears to be some form of fainting spell that caused her to sustain an injury.

Conclusion

[107]
It was submitted the Appeal should be dismissed and the decision of the Review Unit (dated 13 April 2016) be confirmed.

[108]
The Regulator seeks costs of defending the Appeal.

Appellant

Real Question in this Case

[109]
The employer had released Byrnes from teaching duties on 30 October 2015 to attend Union meetings as had been the practice for the past 11 years. She was paid as if she was teaching at the College who had expressly authorised the attendance and it was the case that it was in the course of Byrnes' employment she attended the meetings with the authority, knowledge and support of the employer when the employer decided to pay the wages.

[110]
This was not an interval case with the reason for the claim being in the treatment of the meeting as a paid day of work in the nature, terms and circumstances of the employment.

[111]
However in any event the Appellant satisfied the elements of establishing an interval claim, hence an alternative submission is also made.

Overview of the Appellant's Submissions

[112]
An overview was put by the Appellant as follows:

Submission in the Alternative

First, the attendance on 30 October 2015 was an ordinary work day authorised as part of her employment allowing participation in the Executive/Council meetings. An activity in the course of employment arises as a consequence of these factors. As a result of custom and practice the attendance was incidental to her ordinary employment as a teacher in BCE.

Second, in the alternative, even treating it as an interval case, the facts demonstrate that BCE authorised, encouraged and induced Byrnes to attend the meeting.

The Course of Employment ‑ Legal Principles

The only issue to be determined is whether the injury was in the course of employment to satisfy s 32(1) of the Act. The authorities relied upon make it abundantly clear that the expression "course of employment" is a far more extensive concept that simply carrying out duties.

[113]
In approaching an analysis of the authorities in cases dealing with the expression "course of employment" the submission encouraged that it not be an exercise in statutory construction but rather to gain an understanding of the concepts expressed in those cases. There is a requirement to have regard to the "general nature and circumstances of the employment" and not merely the circumstances of the particular occasion out of which the injury to the particular employee had arisen.

[114]
In Hatzimanolis v ANI Corporation Ltd^[11] (Hatzimanolis) it stated that the incidence of service is not a principle of the application of which will determine whether the injury was sustained in the course of employment, it is a conclusion.

[115]
While the Appellant's submission is that it is not strictly necessary to reach the conclusion that attending the Union meeting was in the course of employment the Commission should be fortified in reaching a conclusion by the fact that attendance was a well‑established custom and practice as part of the employment of teachers who occupied Executive/Council positions. It is difficult to get past the conclusion that engaging in an activity authorised by the employer and paid for by the employer must not be in the course of employment.

[116]
Other authorities relied upon to support authorisation and custom and practice included:

Danvers v Commissioner for Railways (NSW)^[12] (Danvers);
Comcare v PVYW^[13] (PVYW);
Henderson v Commissioner of Railways (WA)^[14];
White v Berrie^[15].

Interval cases

[117]
In terms of the alternate position the submission addressed the history of interval cases and the current state of the law. The Henderson test mentioned previously was said to have had a problematic judicial history by the time the High Court had reformulated the test in Hatzimanolis where reference was made to the strained interpretation of the words "in order to carry out…duties" which had been applied in a number of cases.

[118]
In Hatzimanolis the plurality had stated the principle in interval cases as:

"Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way."

It is worth noting the plurality went on to say that an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of misconduct. The Court reaffirmed what Barwick CJ had said in Danvers, namely that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment and "not merely to the circumstances of the particular occasion out of which the injury to the employee had arisen".

[119]
In PVYW the majority set out an approach to the application of the Hatzimanolis principle to interval cases in that:

there was a factual finding an injury was suffered by an employee whilst not engaged in actual work;
in some cases the injury will have occurred by reference to the place, more commonly, it will have occurred while the employee was engaged in an activity;
the question that arises was whether the employer induced or encouraged the employee to engage in that activity; and
to be added was whether the employer authorised the employee to engage in the activity.

If the answer is in the affirmative the injury will have occurred in the course of employment.

[120]
In this case the connection between the injury, the circumstances in which it occurred and the employment is achieved by the fact of the employer's inducement, encouragement or authorisation of the attendance on 30 October 2015.

[121]
The satisfaction of both the place and activities test as a condition for liability is not required. See Westrupp v BIS Industries Ltd^[16].

Teacher Cases

[122]
It was not unsurprising there were no cases about employees claiming compensation for an injury sustained in authorised activities on pay however there were some authorities, of marginal assistance that demonstrated the nature of the course of employment in the teaching profession. These included:

Mackenzie v The Workers' Compensation Board of Queensland^[17] where Moynihan J had held the attendance at a golfing afternoon and barbecue after school was in the course of employment because of the discussion of a pilot program with peers; and
Wentzel v The Workers' Compensation Board of Queensland^[18] where Moynihan J had upheld the decision of an Industrial Magistrate which involved a teacher being injured when involved in an extra‑curricular activity of an overseas trip supervising students on a voluntary basis.

A contractual issue ‑ paid meeting time as a contractual entitlement

[123]
The Commission was not in this case required to determine that the attendance at the meeting was in the course of employment as that conclusion is reached by other means such as:

attendance was authorised and paid by the employer;
it had been a custom and practice of the employment; and
if not a contractual term the condition had formed part of the general industrial terms and conditions of the employment.

[124]
A finding ought to be made that the paid meeting time at Executive/Council meetings was a contractual entitlement on two distinct grounds:

implied by custom and usage of 22 years. See Byrne v Australian Airlines Ltd^[19]; and
by virtue of the Union acting as agent for its employees who hold Executive/Council positions.

Nature, terms and circumstances of employment

[125]
The terms of Byrnes' employment demonstrated that:

attendance and participation in Executive/Council meetings were authorised and paid by the employer; and
attendance and participation were a well‑established custom and practice.

[126]
If treated as an interval case, the employer had authorised, encouraged and induced her attendance at the meetings.

Paid meeting time provision

[127]
There was evidence from Burke which detailed the payment arrangements having been the product of a robust industrial dispute and negotiation between two experienced and practical industrial relations organisations which had resulted in a formal arrangement that provided:

teachers being released from teaching duties, on normal pay, to attend the Union meetings;
the employer was expected to provide a replacement teacher to cover all teaching duties for that day; and
the Union would reimburse the actual cost of the replacement teacher.

Payment in the ordinary way

[128]
The payment of uninterrupted ordinary wages was a powerful factual support that the attendance at the meeting, as with any other meeting paid under the same system, was in the course of employment.

[129]
Attendance at the Union meetings was not dealt with in the employers Web Self Service system.

Paid meeting time as professional development

[130]
The aspect of Byrnes' professional development at these meetings was supported by the evidence of Young who had viewed the attendance in the same category as QCAA meetings although at a lower order. The School Bulletins (Notices) described Byrnes' attendance at the Union meetings as "in‑service" which was synonymous with professional development.

Authorised and approved activities in work time with pay

[131]
All the evidence points to the employer having authorised and permitted Byrnes to attend the Union meetings with the authorisation occurring from the entry into the diary following correspondence from Burke which identified the meetings dates for the year ahead.

Teacher Release Fund entrenches meetings in the course of employment

[132]
The fund allocates a budget for each school to cover the release of teachers to attend a range of other meetings where they are paid for the attendance. This administrative arrangement has institutionalised a culture where teachers are released from classroom duties to engage in off‑site activities in the course of employment.

Attendance not leave, entitlements accumulate on the day

[133]
The attendance at the Union meetings sits on its own and is not any of the leave types provided for in the collective agreement. Employees accessing this leave continue to accrue entitlements that include:

personal leave;
annual leave; and
long service leave.

Paid meeting time provision in practice

[134]
In the 11 years prior to the incident on 30 October 2015 there was a consistent process in place with the Union providing correspondence under the signature of Burke that:

set out the meeting dates for the year;
summarised the terms of the arrangement;
the Fridays were "employer time";
expectation of a replacement teacher; and
payment for the cost of a replacement on condition one was employed.

[135]
Byrnes would issue a reminder prior to each meeting that set in place a process to locate a replacement for the day. This action was consistent with the exercise of an employment entitlement which was recognised by the employer. Byrnes would attend the College prior to going to meetings to distribute work for classes and undertake other work‑related functions. The meetings were prioritised by her to the extent that one occasion a school sports carnival took precedence over attendance at a Union meeting. Byrnes would treat the day in the same way as any normal day.

Broader system of paid off‑site activities that are not teaching duties

[136]
Byrnes was released to attend QCAA meetings for which the College paid for her attendance as ordinary normal pay, significant as her attendance was in the capacity of the nominated representative of the Union. There was no line between teaching, education, school and Union functions with Bath giving evidence that meetings such as QCAA were not part of a teacher's duties.

Injury treated as any other workplace injury

[137]
The College had treated the injury the same as an injury that happened at work with Byrnes' having advised the Workplace Health and Safety Officer (by telephone) of the incident.

Generally

[138]
The nature of a teacher's employment is relevant in that it carries professional responsibilities which extend beyond teaching classes. Teachers are encouraged to be involved in a range of matters that whilst not directly impacting on their duties, are pertinent to the wider sphere of education and improvement in the sector. These included participation in committees, panels and syllabus activities that provided a high level of professional development.

Benefits

[139]
The College gained benefits from Byrnes' attendance at the Union meetings which included:

enhancing a good relationship with the Union;
maintaining harmonious staff relations;
benefit of having a supply teacher to cover Byrnes' attendance at the meetings; and
BCE gained the benefit of 21 years of industrial peace on this issue.

The issue of benefit was relevant to the question of authorisation on the interval argument and in this case the employer benefits reinforced the express authorisation given.

Encouragement

[140]
There was evidence of encouragement in two categories, firstly with the support given to Byrnes to attend the meetings and being paid for the days as normal by the College and secondly the encouragement of improving employee relations by the support given to Byrnes in her Union role. The one time Byrnes experienced difficulties regarding her attendance at Union meetings in 2008 there was a meeting between the Union and BCE which affirmed the entitlements to attend meetings. At no time was Byrnes informed that BCE reserved the discretion to refuse her attendance at the meetings.

Inducement

[141]
The payment of ordinary pay for the day and provision of a replacement teacher constituted inducement.

Significant contributing factor

[142]
The attendance by Byrnes at the Christie Centre was expected and normal in that an attendee would move from one area of the venue to another. The fall was the cause of the injury and once determined that the meeting was in the course of employment, the employment is the significant contributing factor to the injury.

Invitations to error

[143]
The conduct of the Regulator's case portends the possibility of invitations to error in the following areas:

that the employer had no control over Byrnes when she attended the 30 October 2015 meeting;
the misguided focus on the activity or business of the meeting on 30 October 2015 as being a determinant of the course of employment;
it was irrelevant to the course of employment that the employer might have a discretion or some form of reserved power to forbid attendance at the meeting; and
it was erroneous to regard St Mary's College as the employer.

Conclusion

[144]
The straight forward answer to the question of whether Byrnes' attendance at the Union meeting on 30 October 2015 was in the course of employment was said to be "Yes", because the employer had authorised the attendance on a school day with the full knowledge of the attendance and was prepared to pay the employee to attend the off‑site meeting.

[145]
There was an entrenched custom and practice acknowledged by support to attend the meetings and the payment of ordinary pay for the day which became part and parcel of the employment. It was contended that the paid meeting provision is a contractual term which brings the attendance at these meetings within the course of employment contemplated by a contractual provision. If not a contractual provision the operation of the provision demonstrated that the attendance was in the course of employment.

[146]
Should this be treated as an interval case, contrary to the primary submissions of the Appellant the terms and circumstances of the employment demonstrates satisfaction of the test in Hatzimanolis as explained in PVYW.

[147]
The employer had in this case induced, encouraged or authorised Byrnes to engage in the activity of attending the Executive/Council meetings. The arrangement had been applied by successive line managers at St Mary's College which could not be described as neutral conduct. The payment of normal salary for the day plus the cooperation in the engagement of a replacement teacher for the day was a clear inducement.

[148]
The Appeal should be allowed with costs sought by the Appellant.

Further Submissions of the Appellant

[149]
The further submissions sought to address the following two issues:

legislation governing the appointments of Byrnes to positions with the Queensland College of Teachers and QCAA; and
reference to further authority arising from the Regulator's written submissions concerning the expression "significant contributing factor" pursuant to s 32(1) of the Act.

Legislation

Education (Queensland College of Teachers) Act 2005 (QTC Act)

[150]
Byrnes in 2008 was a member of the Professional Standards Committee of the Queensland College of Teachers pursuant to s 259 of the QTC Act. The legislation vested a discretion in the Board to determine qualifications for appointments to committees. The Board had made a policy decision to reserve positions for Union nominees by reason of the nomination by the Union.

Education (Queensland Curriculum and Assessment Authority) Act 2014 (QCAA Act)

[151]
Byrnes' membership of the Learning Area Reference Committee, the Learning Area Reference Group and the Australian Curriculum Working Group of the QCAA Act was a result of policy decisions of the relevant bodies to reserve positions for Union nominees and in some cases by reason of nomination by the Union.

Significant contributing factor

[152]
The Commission's attention was drawn to Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor^[20] in which an Appeal against a decision of the Commission was allowed in respect of a finding regarding an injury caused by assault in sleeping accommodation provided by the employer. Commentary from this decision went to:

observations that Croning v Workers' Compensation Board of Queensland^[21] was an unusual case based on unusual facts; and
statement by Keane JA in Newberry v Suncorp Metway Insurance Ltd^[22] that the requirement that the employment significantly contributed to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury. His Honour had stated:

"The test applied in determining whether employment was a significant contributing factor must be applied in a practical way. It is the 'exigencies' of employment which must be considered and, while that will ordinarily include the contractual terms of engagement, it will generally require an analysis of the circumstances surrounding the employment."

[153]
The exigencies in this case were the surrounding circumstances of the regularity and acceptance of attendance at a broad range of "off‑site" expressly and approved authorised meetings and the like which provides the requirement of connection between the employment (not the duties) and the injury. See also Harvey v Simon Blackwood (Workers' Compensation Regulator) & Anor^[23].

Regulator Submissions in Reply

[154]
The Regulator argued against the proposition that an entitlement existed in Byrnes' employment contract to attend Union meetings in the course of her employment on the basis of being implied by custom and practice or alternatively on the basis that the term had the contractual effect between the employee and employer by virtue of the Union acting as an agent for its employees who held Executive/Council positions. There were according to the submission a number of fundamental difficulties to this proposition that included:

the arrangement ultimately put in place in 1994 was between the Union and BCE with these parties being the entity;
there was no evidence that in the negotiation the Union was acting as agent for the (then) employees involved;
the Regulator's understanding of the evidence was that it was sometime after 1994 that Byrnes became a Union and Executive/Council member.

[155]
To suggest in the circumstances that the Union was acting for Byrnes in 1994 establishes the fallacy (legal and factual) of the Appellant's argument. Also it should be remembered that Byrnes had commenced as an employee with BCE in 1976 therefore her employment contract with BCE had subsisted for a substantial period of time prior to the arrangement being put in place in 1994 and to Byrnes becoming a Union member.

[156]
Byrnes confirmed in cross‑examination that her employment contract did not require her to become a member of the Union Executive/Council or to attend meetings of the Union bodies. It would be a novel employment contract which would require the implication of a term as proposed by the Appellant arising in circumstances that:

almost 20 years after the employment contract was created;
a unilateral and personal decision by an employee to take up a voluntary position at the Union which was not approved by the employer;
without further agreement the employer gives rise to a term being implied into the employment contract which required the release of the employee on pay to serve the Union rather than the employer.

[157]
Of further significance was the failure to include this arrangement in the Collective Agreement unlike other arrangements enshrined specifically at clauses 6.14, 6.15 and 9.14 of the Agreement.

[158]
The majority judgement of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings^[24] laid down the following criteria for the implication of a term into a contract as:

it must be reasonable and equitable;
it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
it must be so obvious that "it goes without saying";
it must be capable of clear expression; and
it must not contradict any express term of the contract.

This passage had been endorsed by Australian Courts including the High Court in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd^[25].

[159]
In the case before the Commission it is submitted by the Regulator that such a term is not required to give business efficacy to Byrnes' employment contract with her employment contract having been effective for years without such a term implied. There is no basis for the implication of a term or "entitlement" as part of her employment contract to attend Union meetings with the Appellant's case appearing to rest on the premise that bare permission to attend the Union meeting as an office holder of the Union whilst being paid her ordinary pay must result in a conclusion that anything that occurs that day was in the course of her employment.

[160]
The Commission should take into account:

the history of the arrangement;
the original intention of the arrangement that staff members would take leave without pay; and
changes made were to benefit the Union.

[161]
If the Commission was minded to agree with the position advanced by the Appellant that the injury occurred in the course of employment the Regulator maintained that Byrnes had failed to establish in the circumstances that the employment was in fact the significant contributing factor to the injury.

[162]
The reliance on a "but for" case was refuted on the basis that authorities had constantly held that was the wrong test. See Qantas Airways Limited v Watson (No 2)^[26] and the cases cited therein.

Interval Cases

[163]
Despite the apparent agreement this was not an interval case the Appellant still addressed in some detail interval case authorities. It has therefore become necessary to characterise the case as either a place or activity case and in these circumstances it is a place case.

[164]
The evidence was that the College had no knowledge of actions or activities undertaken by Byrnes when she attended at the Union meeting which restricted their position to having extended permission to Byrnes to attend at a place where the Union meetings were being held.

[165]
In PVYW firstly in proceedings before the Federal Court of Australia, Nicholas J had noted:

"A particular difficulty with the applicant's argument is that in many cases an employee will be induced or encouraged by his or her employer to spend time at a particular place solely for the purpose of allowing the employee to engage in a specific activity or range of activities. In such cases it may not be sufficient to establish that the employee had suffered his or her injuries in the course of employment simply because he or she suffered them while at that particular place."

This particular passage highlights the fundamental problem for the Appellant's case in that it is not merely enough to simply point to the fact that the injury occurred at the Christie Centre to establish that the injury had occurred in the course of her employment.

[166]
In proceedings before the High Court the operation of the Hatzimanolis principle was reanalysed with the majority judgement observing:

"When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment."

The majority further observed:

"There is a further reason for rejecting the respondent's contention. She was not injured whilst present at a place in the sense in which that expression is to be understood in the joint reasons in Hatzimanolis. An injury occurs at a place when the circumstance of the injury is referable to the place. The circumstances of Danvers, which was the basis of this criterion of liability, make this plain. They explain why the mere presence of an employee at a place in circumstances where an injury is associated with that place may be sufficient to bring that injury within the course of the employee's employment."

[167]
The majority addressed also the factual circumstances of the Danvers case which they concluded:

"An injury occurring to an employee by reference to or associated with a place where the employee is present may involve something occurring to the premises or some defect in the premises. For example, if the light fitting in this case had been insecurely fastened into place and simply fell upon the respondent, the injury suffered by her would have arisen by reference to the motel. The employer would be responsible for injury because the employer had put the respondent in a position where injury occurred because of something to do with the place. Liability in those circumstances is justifiable. Liability for everything that occurs whilst the employee is present at that place is not."

[168]
In the present case regarding the interval argument on either an activity or place approach there was absolutely nothing about either the activity or place that gives rise to the injury occurring, it was merely the essential geographic background to some other event that gave rise to the injury.

[169]
The injury cannot be seen to be one that either occurred in the course of Byrnes' employment, or was one that the employment made a significant contribution to the injury occurring.

Appellant Further Submissions in Reply

[170]
The Appellant filed further submissions of an unusual nature in that they were filed in reply to reply submissions filed by the Regulator. Counsel for the Regulator upon the reading of the submissions took no issue with the content being subject to consideration by the Commission advising that they would not seek to provide any further reply.

[171]
The submission sought to correct what was described as a "series of erroneous legal and factual propositions" contained in the Regulator's reply submissions and covered the following grounds:

the contractual term of Byrnes' contract of employment that, in the event that Byrnes held office in the Union Executive/Council, she was entitled to attend Union Executive/Council meetings on ordinary pay;
the course of employment point;
the "significant contributing factor" point; and
interval cases.

Contractual term

[172]
Factually incorrect errors said to have been of concern related to:

Byrnes' Union membership;
misapprehension regarding staff members taking leave without pay; and
Union payment for relief teachers and benefit for the employer.

[173]
The Regulator had diverted to unrelated argument that was reliant on BP Refinery (Westernport) Pty Ltd v Shire of Hastings^[27] in which the Regulator mistakenly treated implied terms as a single type when there were four separate types. See Brambles Holdings Ltd v Bathurst City Council^[28] and Byrne v Australian Airlines Ltd^[29].

[174]
Further mistaken submissions were made regarding the terms of a contract of employment being fixed and inflexible from the date of the original agreement which were not supported by any authority.

[175]
Other matters subject of concern to the Appellant included:

custom and practice;
employment contract did not require attendance at Union meetings;
longevity of the employment;
references to the Collective Agreement that defied the legal orthodoxy in the case of Byrne;
invoking the history and "original intention" of the nature and terms of the contract of employment. See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd^[30];
there was no occasion to have recourse to the extrinsic evidence of negotiations as invited by the Regulator. See Codelfa Pty Ltd v State Rail Authority of NSW^[31]; and
no evidentiary basis around the Regulator's conjecture about teacher relief.

[176]
The Commission does not need to find that the agreement and practice for paid employer time attendance at Union Executive/Council meetings was a contractual term, as the same facts and circumstances are evidence of the course of employment of a teacher in Byrnes' situation. The custom or practice was well established and so entrenched that it is arguably a contractual term and in this case it had become set in concrete into the course of employment.

Course of Employment

[177]
The Regulator has misapprehended the Appellant's case in the assertion of reliance on the "bare permission to attend" meeting. The evidence of Byrnes' authorisation to attend the meeting was one of a matrix of factors that brought the attendance of the meetings within the course of employment. Due to the strength of the other factors it is not necessary for the Commission to make a finding about the term of the contract of employment and its source in custom or usage, as a term negotiated by an agent, as an express term evidenced by long practice. There is sufficient evidence to establish the course of employment.

Significant contributing factor

[178]
The reliance by the Regulator on the matter of Qantas Airways Limited v Watson (No. 2)^[32] was said to be misguided. The correct approach is to look at all the circumstances surrounding the employment, not only the contractual terms which includes a broad array of expressly authorised and agreed "off‑site" activities. Once it is within the authorised and agreed activities the practical and common sense answer is that Byrnes' attendance at the meeting on 30 October 2015 was an authorised activity she had been induced or encouraged to undertake.

Interval cases

[179]
The primary contention of the Appellant is that this was not an interval case because the activity of attending the meeting was done in the course of employment. The Regulator had misunderstood and wrongly characterised the evidence as permission to attend a place and Byrne had been authorised to attend the meeting because of a long standing agreement. Permission had never entered into it and was not a feature of the Regulator's witness evidence.

[180]
For the interval point the Appellant submits this is an activity not a place case with the location being unimportant. It was the activity of attending the meeting that was critical and highlighted in the comments of Young during her evidence. The Regulator had failed to come to grips with the central tenet in PVYW. In this case Byrnes was authorised, encouraged or induced to attend the meeting as "employer time" activity at whichever place it was scheduled.

[181]
On the activity basis the injury occurred in the course of going about the activity of attending the meeting for which authorisation and agreement had been given.

Conclusion

[182]
The evil inherent in the Regulator's contrary position is that an employee could be arbitrarily deprived of cover because of an undisclosed reservation or qualification on the authorisation by the employer.

Conclusion

[183]
At the commencement of the proceedings a document tendered [Exhibit 1] confirmed matters upon which the parties had reached agreement thus not requiring a determination by the Commission. These were identified as:

Byrnes was for the purposes of s 11 of the Act a "worker"; and
Byrnes had suffered a personal injury being a fracture to the right shoulder, more particularly, a right proximal fracture of the humerus.

Matter for determination

[184]
The matter for determination is whether the personal injury suffered by Byrnes arose out of or in the course of employment and if so was the employment a significant contributing factor to the injury.

[185]
The Appellant in submissions put forward argument that the case in question was not categorised as an interval case on the basis that the claim related to the injury occurring on a paid day of work therefore in the circumstances of employment. However an alternate submission regarding an interval claim in that Byrnes was said to have satisfied the elements such a claim in any event and that requires also the consideration of the Commission.

Factual Matters

[186]
Relevant factual matters that emerged in the course of hearing that were not contentious in nature were:

Byrnes had been a teacher with BCE since 1974;
Byrnes had been at St Mary's College since 1976;
at the time of injury she held the position of a Middle Leader with her direct report to the Deputy Principal;
Byrnes was a member of the Union and at the relevant time the holder of two positions:

Branch Executive Member ‑ elected by a state‑wide ballot of Union members; and
Council Member ‑ elected by a ballot of Moreton District Union members;

an arrangement existed between the Union and BCE where members of the Branch Executive/Council would be released from ordinary duties on a number of school days in a calendar year to attend Union meetings;
the arrangement allowed for the employees to be paid by BCE their ordinary wage entitlements with the Union to make a payment in full for the costs associated with the employment of a replacement teacher on the days in question;
the Union would issue correspondence at the commencement of the school year where upon the school would be advised of dates of Executive and Council meetings for the upcoming year;
in correspondence (dated 9 February 2015) the Union informed the Principal of St Mary's College that the meeting dates for which Byrnes would be required to attend Union meetings were a mix of employee and employer time, identifying the dates as:

Employee time

Sunday 8 February 2015

Sunday 15 March 2015

Sunday 24 May 2015

Employer time

Friday 17 July 2015

Friday 28 August 2015

Friday 30 October 2015;

the correspondence further confirmed that in terms of the cost of a replacement teacher for Byrnes, if required would be "the usual practice" of the employer to invoice the Union with details of the supply teacher (name, classification etc.) and the cost, with the full cost being reimbursed to the employer by the Union;
just prior to 30 October 2015 verbal approval was given by the College to Byrnes to be released on that date for the purposes of her attendance at three Union meetings at the Christie Conference Centre in Brisbane being the:

QIEU Council meeting;
Independent Education Union of Australia Branch Executive meeting; and
QIEU Annual General Meeting;

whilst in attendance at the Christie Centre on 30 October 2015 Byrnes fell, resulting in the accepted personal injury;
Byrnes underwent a medical procedure the costs of which were met by WorkCover Queensland against a Contract of Insurance policy held by the Union.

Salary Payment Arrangements for Attendance at Union Meeting

[187]
The arrangement in place between the Union and BCE in regard to salary payment at 30 October 2015 had a history that related back to an industrial dispute before the Commission in late 1993 where the Union had been seeking the release of teachers, who were elected to offices in the Union, to attend meetings of the Union in normal school hours.

[188]
Commissioner Nutter at the conclusion of a conference held before him on 25 November 1993 made a recommendation that included the following commentary:

"I think it's fair to say that we're probably in a no win situation in this particular matter. I recognise the employer has a right to have his employees carrying out duties during working time as a general rule and I think that ‑ as I understand the situation next year there may be some additional problems associated with persons on the union council who may be seeking leave. I think the union council should pay close attention as to when in fact they do hold their council meeting so that problems don't arise or are minimised for 1994.

I note that in this particular situation for the meeting to be held on Friday that 21 of the 22 schools are releasing people to attend the meeting and in terms of that I think, I believe it's appropriate that Villanova may reconsider their position in respect to that one meeting, and I'd recommend that they do release Mr Hammond to attend that meeting.

In making such recommendation it's not to be considered to be a precedent for the future in anyway. I hope that the parties can resolve the matter for the future for 1994, but I expect that we'll probably all end up back here on that occasion. I think there's got to be a bit of give and take and I don't think that the union can unilaterally decide that they will hold 10 Friday meetings a year during school time and expect that everyone will be released for those periods."

[189]
It can reasonably be accepted that Commissioner Nutter had in the course of his recommendation questioned the unilateral decision of the Union to hold ten Union meetings in 1994 during school time with the expectation of teachers to be released for those meetings. Certainly the implication arising from his comments was not that the release sought from the school would be for reasons decided by the employer but solely for the purposes of attending the meetings of the Union.

[190]
There is evidence that in the period immediately following the conference before Commissioner Nutter the parties sought by a series of negotiations to responsibly resolve the industrial impasse that existed between parties.

[191]
In correspondence (dated 14 December 1993) the (then) Acting General Secretary of the Union offered the following proposal to BCE for Union Council members to attend Union meetings:

"If it is not possible for you to grant leave with pay, then the Union is prepared to provide payment for replacement teachers who are employed for the absent staff. We would require invoicing and identification of who those individuals were and how long they taught or were replacing existing staff on those days."

[192]
On 2 March 1994 the same Acting General Secretary forwarded further correspondence on behalf of the Union to the BCE that included the following passage:

[193]
This exchange was followed with additional correspondence under the same signature of the (then) Acting General Secretary of the Union (dated 14 March 1994) identifying the principles of agreement reached between the parties for Union Council members release time as:

that QATIS Union Council meetings would be held in 50 per cent of the employer's time and 50 per cent of the employees time;
that there would be a maximum of ten Council meetings per annum to which this arrangement would apply; and
that it is recognised that these arrangements would be reviewed annually and would be discussed in October of each year between the employers and the Union.

[194]
Reference was also made to financial arrangements that would be applicable in the circumstances:

the employer will agree to provide leave without pay for the respective Union Council meeting dates in employer time and the Union will reimburse the employee involved for their loss of salary. If the cost of a replacement teacher is greater than the salary of the Council member who has been released on leave without pay, the employer shall invoice the Union for these additional costs; and
the employer will encourage Principals of their schools (where this is relevant) to provide replacement teachers when the Union Council member is absent in employer time.

[195]
There appears to have been a change in the leadership structure of the Union following the correspondence of 14 March 1994 which was evident by correspondence sent to BCE (dated 30 March 1994) under the signature of Burke as the (then) Acting General Secretary which sought to clarify arrangements regarding wage and salary payments to members of the Union Council when in attendance at all day meetings of the Union Council.

[196]
The correspondence specifically requested that:

that BCE pay the employee as normal; and
BCE invoice the Union for the cost of relief staff to cover the teacher's absence.

Burke went on to state:

"I believe that this arrangement will be to the benefit of both employee, employer and Union and will make easier such matters as taxation payments, issuing of group certificates and the like.

[197]
The evidence with regards to the disputation between the Union and BCE over the release of employees to attend Union meetings is clear in that the Union was seeking the release of teachers to attend those meetings for the purposes of conducting business relating to industrial and educational matters for the benefit of Union members. It makes no sense that the Union would have been required to embark on such a course where they in the end agreed to make reimbursement to BCE the full costs of relief teachers engaged to cover the absence of teachers who undertake duties of a nature that could be considered as having been in the course of their employment as a teacher.

[198]
I am satisfied that the arrangement regarding salary for teachers released to attend Union meetings, reached between the parties in 1994 and still in operation as at 30 October 2015 allowed for the teachers in question to attend Union meetings in their capacity as elected officers of the Union with the cost of attendance borne by the Union through the reimbursement of the full costs associated with the engagement of relief teachers.

Contractual Entitlement

[199]
On the question of the standing of the arrangements applicable to the attendance of Byrnes at the Union meetings being an implied term of the employment contract, the evidence of Burke in the proceedings was that the Union had never sought to have such arrangements included in the Collective Agreement as they were satisfied they had operated since 30 March 1994 without issue.

[200]
The Regulator stridently objected to that proposition requesting that in deliberation the Commission should take into account such matters as:

the history of the arrangement;
original intention of the arrangement that staff members would take leave without pay; and
the changes made were to benefit the Union.

Further the criteria laid down for the implication of a term into a contract identified in the matter of BP Refinery (Westernport) Pty Ltd v Shire of Hastings^[33] and endorsed by the High Court in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd^[34] had not been met in these circumstances.

[201]
There is merit in the argument of the Regulator that in this case the necessity to give business efficacy to the contract as a requirement for a term to be implied, was not supported by any evidence. In fact the arrangement at the time of Byrnes' injury on 30 October 2015 had operated beside the various contractual arrangements governing the employment of Byrnes since 1994 without any of the parties seeking to alter the status of the arrangement by having it included formally in certified agreements.

[202]
The Commission does not accept the arrangement was an implied term of Byrnes' employment contract in any event.

Eligibility to Attend Executive/Council Meetings

[203]
Byrnes was released to attend the abovementioned meetings by virtue of having been elected to the Union bodies from either the full membership of the Queensland Branch of the Union for the Executive position and by Union members in the Moreton Region for the Council position.

[204]
The employer had no role with regards to Byrnes' nomination or election to the Union positions and consequently was not in a position to issue directions that would require her attendance at the meetings or for that matter to instruct other employees not elected officers of the Union to attend such meetings.

[205]
The evidence does not support the proposition that Byrnes' attendance at the Union meetings on 30 October 2015 had been by way of encouragement or inducement at the hands of the employer but in fact simply a positive response from the employer to the request contained in the Union correspondence of 9 February 2015 for release to attend the Union meetings scheduled on school days in that calendar year. The employer in good faith had continued with compliance of the arrangement between the Union and BCE that had existed since 1994 and had authorised the leave of absence from school duties on the day in question to allow Byrnes to attend to her Union responsibilities.

[206]
In essence the evidence was that the employer beyond granting Byrnes a release from her ordinary teaching duties to attend the Union meetings exercised no other control over the activities she undertook at those meetings which of course is foreign in terms of the conduct of an employer when dealing with an employee in the course of their employment.

Union Meeting ‑ 30 October 2015

[207]
In the course of the proceeding the agendas for the Executive/Council meetings and Annual General Meeting of 30 October 2015 were tendered, the content of which is summarised at paragraph 26 of this decision. It is not surprising that each of the agendas contained items relevant to the operations of the Union and that were not in any way related to the specific employment tasks Byrnes would have executed if she had instead of attending the Union meeting remained at the College.

[208]
The activities in which Byrnes engaged on 30 October 2015 as an elected officer of the Union were specific to those roles and not activities that could reasonably be found to have been performed in the course of her employment as a Middle Leader teacher at St Mary's College.

Off‑Site Activities

[209]
There was evidence from Byrnes regarding her participation in a range of activities "off‑site" beyond those of her Union activities and of being not only released from duties by her employer but also in the case of her involvement with LARK that organisation would make reimbursement to the employer of costs which was not dissimilar to what occurred when released to attend Union meetings.

[210]
In addition to her role within LARK there had been involvement with a Professional Standards Committee in 2008 which had resulted in her appointment under the QTC Act as a nominee of the Union. The involvement with LARK also occurred through Byrnes being nominated by the Union to participate as a representative of the Union in accordance with the QCAA Act.

[211]
The Commission does not accept the argument advanced by the Appellant that the circumstances relating to Byrnes' participation in the activities aforementioned were of a similar nature to those of the Union activities in which she engaged as an elected officer of the Union. In each of the other activities relied upon they involved bodies that were at least bi‑parte in nature as opposed to the Union which is a separate body subject to registration at both a State and Federal level as a standalone organisation and in whose rules reflect through the objects of both registered organisations that the Union was established for the primary reason of protecting and advancing the interests of employees in non‑government schools amongst a raft of other measures all of which relate to the advancement of members' interests.

Staff Notices ‑ Teacher Absences

[212]
The internal staff notice for the period inclusive of 30 October 2015 identified Byrnes' absence from school duties as being "in‑service" whilst she attended the Union meetings held on that date.

[213]
Significant weight was apportioned to the term "in‑service" being supportive of Byrnes' attendance at the Union meetings as being in the course of employment however that was somewhat defused to some extent by the evidence of the current Principal at St Mary's College (Finan) who defined "in‑service" as a term that could be applied to "any activity that you're off the campus when you're doing something related to your business". According to Finan the meaning of "business" could apply to anything not related to medical, long service leave or meetings. It was described as a generic term for "something you are off doing".

[214]
The entry in the staff notice document (tendered in the proceedings) regarding Byrnes' attendance at Union meetings is in the view of the Commission insufficient for a conclusion to be reached that it confirmed a temporal connection between her absence on 30 October 2015 to attend the Union meeting and her employment.

Finding

[215]
On consideration of the evidence, material and submissions before the proceedings the following findings are made:

Byrnes was for the purposes of s 11 of the Act, at all relevant times a worker;
Byrnes on 30 October 2015 suffered a personal injury being that of a fracture to the right shoulder, more particularly, a right proximal facture of the humerus;
the personal injury did not arise out of, or in the course of, her employment with BCE on the basis that the activities engaged in by Byrnes on 30 October 2015 were not something which was concomitant of or reasonably incidental to her employment to do that work. In Commonwealth of Australia v Lyon^[35], Deane J stated:

consequently the employment was not a significant contributing factor to the injury.

Interval Case

[216]
The Appellant presented material in relation to interval case law as the alternate position should there be a finding that Byrnes injury had been found not to have occurred in the course of her employment.

[217]
The significant case law in recent times regarding an injury that occurred in an interval between periods of employment was the matter of PVYW where a worker suffered an injury whilst engaged in a sexual activity during an overnight stay at accommodation booked and paid for by the employer.

[218]
A majority of the High Court of Australia found issue with the application of principle in Hatzimanolis in the decision of a Full Bench of the Federal Court which had dealt with an Appeal against the initial decision of the Administrative Appeal Tribunal. The majority found that the proper application of the test in Hatzimanolis was:

"The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment."

[219]
In this case the parties had agreed Byrnes had suffered a personal injury whilst attending a meeting of the Union held on 30 October 2015. The fundamental question for consideration as to whether the injury is compensatable or otherwise as an injury suffered in an interval between periods of employment is whether the employer had induced and/or encouraged Byrnes to attend the Union meetings at the Christie Centre on 30 October 2015.

[220]
The Appellant claimed that Byrnes had been induced to attend the meetings as a consequence of the employer having made the payment of ordinary pay to her on that day and that a replacement teacher had been engaged to cover her duties on that day. Whilst both limbs of this proposition undoubtedly occurred as presented by the Appellant, upon examination of the circumstances it is found that he conduct of the employer had been to simply facilitate a leave of absence requested by both the Union and Byrnes to allow for her participation in activities associated with her role as an elected officer of the Union.

[221]
The Macquarie Dictionary (5th Edition) defines the term "induce" as:

"induce /in'djus/ verb (t) (induced, inducing) 1. to lead or move by persuasion or influence, as to some action, state of mine, etc.: to induce a person to go. 2. to bring about, produce, or cause: opium induces sleep."

[222]
In this case there is no evidence of the employer having acted in a manner whereby they led, persuaded, influenced or caused Byrnes' attendance at the Union meetings but had at best complied with an arrangement of some twenty‑one years standing by authorising a leave of absence for Byrnes to undertake activities related to her Union role.

[223]
In terms of the employer having encouraged Byrnes to attend and participate in the Union activities of 30 October 2015 reliance was placed by the Appellant on the following course of conduct by the employer:

supported her attendance by the payment of her ordinary wages and release from teaching duties; and
BCE's support of Byrnes to attend Union meetings by the intervention in 2008 when her attendance had been challenged by management at St Mary's College.

[224]
The Macquarie Dictionary (5th Edition) defines the term "encourage" as:

"encourage /ɛnˈkʌrɪdʒ, ən‑/ verb (t) (encouraged, encouraging) 1. to inspire with courage, spirit, or confidence. 2. to stimulate by assistance, approval, etc."

[225]
The evidence regarding encouragement from the employer is similar to that of inducement in that their actions complied with the terms of the longstanding arrangement regarding attendance at Union meetings and may have had the effect of "stimulating" the attendance by approval but falls short of inducement.

[226]
On consideration of all the material presented in the proceedings it is has not been established on the requisite standard of proof that Byrnes' injury was suffered in an interval between periods of employment and the rejection of that facet of the Appeal had the effect of excluding also Byrnes' employment as having been a significant contributing factor to the injury suffered by her on 30 October 2015.

[227]
The Appeal is dismissed and the decision of the Regulator of 13 April 2016 is confirmed.

[228]
The Appellant is to pay the Regulator's costs of and incidental to this Appeal.

[229]
I order accordingly.

Footnotes

[1] State of Queensland (Queensland Health) v Q‑COMP and Beverley Coyne (2003) 172 QGIG 1447

[2] SPE Pty Ltd v Q‑COMP and Garry Clifford Fuller ‑ (C/2010/9) ‑ Decision ‑

[3] Commonwealth of Australia v Lyon (1979) 24 ALR 300

[4] Kavanagh v Commonwealth (1960) 103 CLR 547

[5] WorkCover Queensland v BHP (QLD) Workers' Compensation Unit [2002] QIC 27

[6] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

[7] Comcare v PVYW (2013) 250 CLR 246

[8] O'Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000

[9] Newberry v Suncorp Metway Insurance Ltd [2006] 1Qd.R 519

[10] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

[11] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

[12] Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529

[13] Comcare v PVYW [2013] HCA 41

[14] Henderson v Commissioner of Railways (WA) [1937] HCA 67

[15] White v Berrie [1923] NZLR 297

[16] Westrupp v BIS Industries Ltd [2015] FCAFC 173

[17] Mackenzie v The Workers' Compensation Board of Queensland (1993) 33 WCR 438

[18] Wentzel v The Workers' Compensation Board of Queensland (1991) 31 WCR 102

[19] Byrne v Australian Airlines Ltd (1995) 195 CLR 410

[20] Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001

[21] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

[22] Newberry v Suncorp Metway Insurance Ltd [2006] 1Qd.R 519

[23] Harvey v Simon Blackwood (Workers’ Compensation Regulator) & Anor [2016] ICQ 014

[24] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363

[25] Secured Income Real Estate (Australia) Ltd v. St Martins Investments Pty Ltd (1979) 144 CLR 597

[26] Qantas Airways Limited v Watson (No 2) [2010] NSWWCCPD 38

[27] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363

[28] Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153

[29] Byrne v Australian Airlines Ltd (1995) 195 CLR 410

[30] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52

[31] Codelfa Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

[32] Qantas Airways Limited v Watson (No 2) [2010] NSWWCCPD 38

[33] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363

[34] Secured Income Real Estate (Australia) Ltd v. St Martins Investments Pty Ltd (1979) 144 CLR 597

[35] Commonwealth of Australia v Lyon (1979) 24 ALR 300

Editorial Notes

Published Case Name:
Lynette Byrnes v Workers' Compensation Regulator
Shortened Case Name:
Byrnes v Workers' Compensation Regulator
MNC:
[2017] QIRC 1
Court:
QIRC
Judge(s):
Thompson IC
Date:
12 Jan 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
BP Refinery (Westernport) Pty Ltd v Shire of Hastings	(1977) 16 ALR 363	4 citations Jump To Cite 1 - (1977) 16 ALR 363 Cite 2 - (1977) 16 ALR 363 Cite 3 - (1977) 16 ALR 363 Cite 4 - (1977) 16 ALR 363
Brambles Holdings Ltd v Bathurst City Council	View on:NSWLR(2001) 53 NSWLR 153	2 citations Jump To Cite 1 - (2001) 53 NSWLR 153 Cite 2 - (2001) 53 NSWLR 153
Byrne v Australian Airlines Ltd	View on:JADE(1995) 195 CLR 410	3 citations Jump To Cite 1 - (1995) 195 CLR 410 Cite 2 - (1995) 195 CLR 410 Cite 3 - (1995) 195 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of NSW	View on:JADE(1982) 149 C.L R. 337	2 citations Jump To Cite 1 - (1982) 149 C.L R. 337 Cite 2 - (1982) 149 C.L R. 337
Comcare v PVYW	View on:JADE(2013) 250 CLR 246	2 citations Jump To Cite 1 - (2013) 250 CLR 246 Cite 2 - (2013) 250 CLR 246
Comcare v PVYW	View on:JADE[2013] HCA 41	2 citations Jump To Cite 1 - [2013] HCA 41 Cite 2 - [2013] HCA 41
Croning v Workers' Compensation Board of Queensland	(1997) 156 QGIG 100	3 citations Jump To Cite 1 - (1997) 156 QGIG 100 Cite 2 - (1997) 156 QGIG 100 Cite 3 - (1997) 156 QGIG 100
Danvers v Commissioner for Railways (N.S.W.)	View on:JADE(1969) 122 CLR 529	2 citations Jump To Cite 1 - (1969) 122 CLR 529 Cite 2 - (1969) 122 CLR 529
Harvey v Workers' Compensation Regulator	[2016] ICQ 14	2 citations Jump To Cite 1 - [2016] ICQ 14 Cite 2 - [2016] ICQ 14
Hatzimanolis v ANI Corporation Ltd	View on:JADE(1992) 173 CLR 473	3 citations Jump To Cite 1 - (1992) 173 CLR 473 Cite 2 - (1992) 173 CLR 473 Cite 3 - (1992) 173 CLR 473
Henderson v Commissioner of Railways (WA)	View on:JADE[1937] HCA 67	2 citations Jump To Cite 1 - [1937] HCA 67 Cite 2 - [1937] HCA 67
Kavanagh v The Commonwealth	View on:JADE(1960) 103 CLR 547	4 citations Jump To Cite 1 - (1960) 103 CLR 547 Cite 2 - (1960) 103 CLR 547 Cite 3 - (1960) 103 CLR 547 Cite 4 - (1960) 103 CLR 547
Mackenzie v The Workers' Compensation Board of Queensland	(1993) 33 WCR 438	2 citations Jump To Cite 1 - (1993) 33 WCR 438 Cite 2 - (1993) 33 WCR 438
Newberry v Suncorp Metway Insurance Ltd	[2006] 1 Qd R 519; [2006] QCA 48	3 citations Jump To Cite 1 - [2006] 1 Qd R 519 Cite 2 - [2006] 1 Qd R 519 Cite 3 - [2006] 1 Qd R 519
O'Loughlin v Linfox Australia Pty Ltd	View on:JADE(2015) FCA 1000	2 citations Jump To Cite 1 - (2015) FCA 1000 Cite 2 - (2015) FCA 1000
Qantas Airways Limited v Watson (No 2)	View on:JADE[2010] NSWWCCPD 38	3 citations Jump To Cite 1 - [2010] NSWWCCPD 38 Cite 2 - [2010] NSWWCCPD 38 Cite 3 - [2010] NSWWCCPD 38
Secured Income Real Estate (Aust) Pty Ltd v St Martin's Investments Pty Ltd	View on:JADE(1979) 144 CLR 597	3 citations Jump To Cite 1 - (1979) 144 CLR 597 Cite 2 - (1979) 144 CLR 597 Cite 3 - (1979) 144 CLR 597
State of Queensland v Q-COMP and Beverley Coyne	(2003) 172 QGIG 1447	2 citations Jump To Cite 1 - (2003) 172 QGIG 1447 Cite 2 - (2003) 172 QGIG 1447
The Commonwealth v Lyon	(1979) 24 ALR 300	3 citations Jump To Cite 1 - (1979) 24 ALR 300 Cite 2 - (1979) 24 ALR 300 Cite 3 - (1979) 24 ALR 300
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd	View on:JADE(2004) HCA 52	2 citations Jump To Cite 1 - (2004) HCA 52 Cite 2 - (2004) HCA 52
Wentzel v The Workers' Compensation Board of Queensland	(1991) 31 WCR 102	2 citations Jump To Cite 1 - (1991) 31 WCR 102 Cite 2 - (1991) 31 WCR 102
Westrupp v BIS Industries Limited	View on:JADE[2015] FCAFC 173	2 citations Jump To Cite 1 - [2015] FCAFC 173 Cite 2 - [2015] FCAFC 173
White v Berrie	[1923] NZLR 297	2 citations Jump To Cite 1 - [1923] NZLR 297 Cite 2 - [1923] NZLR 297
Whittingham v Commissioner of Railways (WA)	View on:JADE(1931) 46 CLR 22	1 citation Jump To Cite 1 - (1931) 46 CLR 22
WorkCover Queensland v BHP (Qld) Workers' Compensation Unit	(2002) QIC 27	2 citations Jump To Cite 1 - (2002) QIC 27 Cite 2 - (2002) QIC 27
Workers' Compensation Regulator v Civeo Pty Ltd	[2016] ICQ 1	2 citations Jump To Cite 1 - [2016] ICQ 1 Cite 2 - [2016] ICQ 1

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