Sex, work, liability and safety

There is a constant tension between occupational health and safety (OHS) and workers compensation. OHS is intended to prevent harm and workers compensation is available for when harm cannot be, or has not been, prevented.  In Australia, these two elements of safety are administered by different organisations under different legislation but it is a distinction that baffles many.   The recent discussion about a sex-related workers compensation claim illustrates this bafflement to some degree.

This time last year Comcare filed an appeal over a Federal Court decision regarding

“A Commonwealth employee is seeking workers’ compensation for injuries sustained after a light fitting was pulled from the wall of a motel during sex, on a business trip.”

(A good summary of most of the legal proceedings is provided by Herbert Geer.)

The case has received wide media attention mostly for the salacious matter of the case, and some political attention, but the purpose of the appeal, according to Comcare, was

“… to seek a High Court ruling on the boundaries between privateand business activities when employees are traveling for work purposes. Workers need to be clear about their entitlements and employers should have an understanding of their responsibilities and how to support their staff.”

The High Court handed down its decision  this week (this link includes additional documentation).  According to the law form Clayton Utz’s interpretation:

“Employers will only be liable for injuries suffered by employees in the course of their employment – however that doesn’t include injuries from a sexual encounter while on a work trip…”

Australian law firm Ashurst issued this advice to clients immediately after the High Court decision.

“The decision may provide some comfort to employers in the lead up to the festive season where there is a risk of employees being injured at functions outside the workplace. However, employers should be careful not to overextend the application of this decision, as it only relates to workers’ compensation.”

One of the temptations in reading the media coverage and some of the legal commentary was to speculate on the relevance of this case for OHS, particularly in the context of Christmas parties and other work functions.  Ashurst warns specifically about this and, elsewhere in its client update, emphasises that the High Court decision ONLY relates to workers compensation.

SafetyAtWorkBlog put some questions to Shae McCartney, a partner with Clayton Utz, after the High Court Judgement, to see if there was a more occupational health and safety context to the case.

SAWB: A worker’s safety is often determined by the system of work being applied in that workplace. Could the fact that the “woman in her late thirties was required to travel to a country town by her employer, the Human Relations Section of the Commonwealth Government agency” be part of that system of work, if not “during the course of her employment”?

SM: Yes. Employers will need to ensure that they consider in their system of work, work related activities, even where they occur outside the workplace. From a safety perspective, they must consider the risks that arise out of their business or undertaking which may include, for example:

(a) overseas travel;
(b) risks associated with the type of travel; and
(c) travel to remote locations.

 Employers should have a policy to cover work related travel and assess risks involved in relation to liability for compensation during a work related trip.

The High Court said an employer is liable where injury is suffered by an employee whilst engaged in an activity and the employer induced or encouraged the activity; or where injury occurred at or by reference to a place the employer induced or encouraged the employee to be at that place.

The Political Misunderstanding

Australia’s conservative governments, in particular, have been hot, perhaps rampant, on the issue of rorting social security services and payments. (Let’s not discuss politicians’ rorting of expense claims)  Workers compensation claims have been a target of criticism for many years and it is worth considering some of the political comments on the recent PVYW case in this larger context.

The current Minister for Workplace Relations, Senator Eric Abetz (no stranger to this blog) was quick to claim a “victory for common sense”.  In his media statement , Abetz said:

“The High Court has taken a very welcome common sense approach that will see a more sensible approach prevail in the future,…. This decision protects the currency of work place safety which was in serious danger of being trivialised by this claim.

“This decision also means that the definition of ‘work-related injury’ is more clearly defined….”

The Clayton Utz comments above do not seem to support the Senator’s interpretation and for OHS readers in the UK the “common sense” comment should cause shivers of recognition.  Common sense can be interpreted as “anything that supports my values/argument/morality”.

Abetz again displays his misunderstanding of workplace safety.  The saga of the PVYW is about workers’ compensation and not, strictly, about workplace health and safety, as stated by Ashurst above.  The prevention of harm in this case is hard to imagine, however the Minister refers to the trivialisation of workplace safety??!!

The conservative ideology is clear in Minister Abetz’ comment that

“It’s important in Australian workplaces that we have a form of ‘mutual obligation’ where employees and employers both work together and are prepared to accept personal responsibility.”

The “mutual obligation” he refers to has been in the OHS laws in Australia for decades but it is perhaps the reference to “personal responsibility” that shows the ideology most clearly.  It is true that even if one is entitled to something, one is not obliged to obtain it.  Workers’ compensation may be seen by some as a choice but those dealing with injured and damaged workers know that the reality is very different.  (In some ways the Senator’s comments may be underpinned by the “responsibility assumption“, a concept that deserves to be understood by OHS professionals and policy makers under this conservative government.)

“Personal responsibility” is a phrase that Australians can expect to hear more of in the years ahead in the context of occupational health and safety but it will be applied selectively.  One cannot help thinking that Senator Abetz hopes that the acceptance of personal responsibility, in itself, would decrease workers compensation claims.

Kevin Jones