Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...The NSW Workers Compensation Commission (WCC) has made an interesting decision relating to workers who sustain an injury whilst at the workplace volunteering to perform work.
Under workers compensation legislation, an employer will only be liable for an injury if that injury arises out of or in the course of the worker’s employment.
In a major decision last year, the NSW Court of Appeal found that an injury sustained by a worker who had visited the workplace on her day off and volunteered to clean, had not arisen out of or in the course of her employment (Hung Vien Tran v Thi Ngoc Hien Vo [2017] NSWCA 134 (Tran)).
In contrast, the WCC in its recent decision of Casley v Soulsport Pty Ltd t/as Coffs City Skydiving [2018] NSWWCC 270, found that an injury sustained by a skydiving instructor whilst ‘volunteering’ to help with cleaning duties on his day off did arise out of or in the course of his employment.
The WCC heard that the skydiving instructor attended work despite not being rostered on for any skydives because he had agreed to provide some training to other employees. When he arrived at the workplace, those employees were performing cleaning and maintenance of the workplace. He volunteered to help them and in the course of doing so, fell off a ladder and sustained an injury to his lower back.
The employer denied liability for the injury alleging, in part, that it was not sustained in the course of his employment. According to the employer, workers were only rostered for work when they were scheduled to go on skydives and they were paid only for those skydives. It argued that the instructor was not rostered on for any skydives on the day of the injury and he was not required to perform cleaning duties as part of his role. The employer also relied on the earlier decision in Tran.
The WCC rejected this argument and found that the instructor had sustained an injury in the course of his employment for which he was entitled to receive workers compensation. In so finding, the WCC noted the ‘ad hoc’ cleaning system the employer had in place which meant workers were expected to contribute to the cleaning and maintenance of the hangar. In addition, the fact that the instructor had attended the workplace to give training to other employees, meant that this case was distinguishable from Tran.
The matter has subsequently been referred for assessment of the instructor’s permanent impairment.
Lessons for employers
Employers should ensure that they have appropriate processes and procedures in place for distinguishing between workers and visitors at the workplace. For example, requiring workers to sign in and out for work or requiring visitors to obtain a visitor tag. If workers are required to attend for work on their days off, they should be reminded not to engage in any work-related activities.
Another key lesson is to ensure that the duties and responsibilities of employees are clearly set out (in a Position Description) and that this is communicated to them.
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