Pub injury occurred in course of employment

Pub injury occurred in course of employment

A FIFO worker who was assaulted at a mining-camp tavern was injured in an interval in an overall period of work and is entitled to compensation, a Federal Court full bench has found in upholding his appeal.

Justices Robert Buchanan, Neil McKerracher and Anna Katzmann found an AAT decision against the worker paid “insufficient attention to the general nature, terms and circumstances of the employment”, and gave “too much prominence” to the circumstances of the occasion giving rise to the injury.

In March 2014, the BIS Industries Ltd fly-in-fly-out silo operator – who resided at the BHP Billiton-owned SPQ Leinster Mining Camp in Western Australia when he was rostered on – was injured when a colleague assaulted him at the camp tavern.

BIS rejected his workers’ comp claim, and in May this year, the AAT found the injury wasn’t work-related because it occurred “between two ordinary discrete periods of employment” (see related article).

AAT Deputy President Robert Nicholson said this meant the interval test established by Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 didn’t apply to the worker’s case, but even if it did, the worker failed to establish that his “injury was brought about by reason of an activity or the place at which he was when the injury occurred”.

The worker appealed, arguing the AAT failed to apply the correct legal test and overlooked particular evidence.

BIS argued the worker was injured “between two discrete shifts or periods of work” because he effectively went “home” after a shift before going out to the tavern for “purely personal social reasons”.

But Justices Buchanan, McKerracher and Katzmann found “this contention is untenable”.

In forming its argument the employer took no account of the FIFO nature of the employment, the strictly temporary nature of the accommodation, and the fact that the worker had one week off between every two-week work period, they said.

Justices Buchanan, McKerracher and Katzmann said that as in Hatzimanolis, the periods when the worker was at Leinster, during which time he was subjected to BIS’s code of behaviour, should be regarded as overall periods of work.

They said that if the worker had been injured by a fire at his quarters while sleeping (as examined in Danvers v Commissioner for Railways (NSW) [1969] HCA 64), injured while showering at the camp (Comcare v McCallum [1994] FCA 975), or struck by a car while returning from his accommodation (Comcare v Mather [1995] FCA 1216), then he would have been entitled to compensation.

“The circumstances of the present case, in our view, are not materially different,” they said.

“In our view, the AAT’s approach was too narrow.

“When it is recognised that [the worker] was only in Leinster, and at the camp, as an incident of his employment, that he was under the control of the [employer] throughout his time in Leinster, and that he was or would be expected to use facilities put in place by BHP Billiton, for which the [employer] took the benefit for its own employees as incidents of their engagement, then it seems to us, with respect, that the AAT misapplied the legal principles which govern the proper statutory construction to be given to s5A of the SRC Act.

“The [employer] induced or encouraged [the worker] to spend his time between shifts at Leinster in the vicinity of the camp, including at the tavern if he so chose.”

Justices Buchanan, McKerracher and Katzmann found the worker’s injury arose in the course of his employment, and upheld his appeal.