Interstate and Overseas Protection under the Workers Compensation Act
In our experience, it is not unusual for an injured worker to have limited knowledge of their entitlements under the NSW Workers Compensation Act (“The Act”).
However, most workers do not appreciate the geographical extent of the “safety net” provided by the Act. Depending on the facts of an individual claim, the protection provided by the Act potentially extends to injuries suffered by NSW workers interstate and overseas.
Historically, certain categories of workers such as flight attendants, pilots and seaman were compelled to travel overseas for work purposes. Many injuries and ilnesses suffered by such workers in overseas cities and ports have been the subject of disputed workers compensation claims. However, the rapidly changing nature of the workforce has resulted in many other workers consistently travelling overseas for fixed term contracts, conferences and a host of other work related reasons. Closer to home, in the mining industry, the phenomenon of the “fly in – fly out” worker has become increasingly common.
The protection of the Act extends not only to the period of return transit for workers between their home employment base and overseas/interstate locations but also in certain circumstances to interstate/overseas leisure activities.
A recent case on point is the 2010 decision of the NSW Supreme Court in the matter of Saverio Da Ros v. Qantas Airways Limited, a decision made in favour of the worker.
Saverio Da Ros, a long haul flight attendant was compelled to be in Los Angeles for work purposes. For his rest period between rostered flights, Qantas accomodated the worker in a hotel. Within the hotel, the worker had access to Qantas Crew Recreation Club equipment, including bycles. At the time of suffering his claim injuries, Da Ros was riding a riding a Crew Recreation Club bike. In crossing an intersection controlled by traffic lights, Da Ros was struck by a cycle courier whom ran a red light. Da Ros suffered career ending injuries.
In denying liability for the workers claim, Qantas accepted that Da Ros was compelled to be in Los Angeles for work purposes, but disputed that the nature and conditions of Da Ros’ employment constituted a substantial contributing factor to the incurrence of injury. The Court of Appeal concluded that on the facts of the case, only one inference could be drawn, namely that the nature and conditions of the workers employment did constitute a substantial contributing factor to the incurrence of his injuries.
Each case will turn on it’s own facts. However, important liability considerations include but are not limited to whether the worker is compelled by their employment to be in a specific city, region or country location, the activity the worker is engaged in at the time injury is suffered and whether the relevant activity is either promoted by or expressly or implicitly encouraged by the employer.