In Westrupp v BIS Industries Limited [2015] FCAFC 173 the Full Bench considered an appeal from a decision by the AAT, which found that a worker employed on a fly in/fly out basis, who was assaulted at a Pub provided by the employer, had not established a sufficient connection between the assault and his employment.
The worker in this case was employed on a 2 weeks’ on/1 week off roster and he generally flew from New Zealand to Western Australia for work. During the 2 week period that the worker was rostered for work he resided in Leinster; which is a closed town developed by the employer to provide accommodation and other facilities for mining operations within the vicinity of the town. Only workers employed at, or associated with the mining operations, or business that supported mining operations, are permitted to reside in Leinster.
The worker’s shift arrangements meant that he worked the day shift during the first week of his roster, and then (after a 24 hour break) he worked night shift for a week. It was during this break that the worker was assaulted. He and a friend had been at the pub and as they were leaving the worker recognised a woman seated with several other people. The woman stood and hugged the worker and one of the men she was with reacted aggressively. The worker walked away and a short time later, outside the entrance of the tavern, whilst the worker was conversing with several others, the man approached him , grabbed him by the throat, threw him to the ground, and started throwing punches.
Eventually the fight was stopped, but the worker suffered an exacerbation to his right shoulder injury, which required surgery.
In its judgment the Full Bench considered whether there was a sufficient connection with the worker’s employment in light of the decisions in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 and Comcare v PVYW (2013) 250 CLR 246. The Full Bench found, applying Hatzimanolis that the entirety of the periods that the worker was at Lienster should be regarded as overall periods of work. Therefore, the relevant consideration was whether his employer had expressly, or impliedly, induced or encouraged an undertaking or presence at some location. Their Honours stated “When it is recognised that Ms Westrupp was only in Leinster, and at the camp, as an incident of his employment, that he was under the control of the first respondent throughout his time in Leinster, and that he was or would be expected to use the facilities put in place by BHP Billiton, for which the first respondent 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…”
This decision places a significant burden on employers utilising a fly in/fly out workers, and it is important to be aware that whilst this decision stands, there is the potential for an employer to be responsible for injuries that happen to any worker after they have reached their point of hire, if they are at a place, or venue, that they have been directed to by their employer, or which has been provided by the employer for the worker’s benefit.
