IMAGINE the scene. My old trade union secretary mate is away on union business. He stays at a country hotel and after dinner and television feels the need for some recreation by expressing his manhood in a most complete manner. He rings up a lady who sells her services by the hour. Most unfortunately he injures his back during said recreation. What are my friend’s chances of successfully claiming workers compensation? Not as remote as you may think.
Fortunately, the majority of the High Court (4-2) would not grant his claim. The High Court knocked back a similar case recently, but it was a close-run thing and may well be revisited. The reasons are intriguing. The majority had to pull a rabbit from the hat to stop the case from succeeding. Indeed, the High Court had only six judges out of the usual seven decide the case because the seventh, Keane J., had decided the matter in the Full Federal Court in favour of the worker. Keane J. was recently appointed to the High Court and could not hear the matter. The decision is, in effect, 4-3.
The case concerned a commonwealth government employee who had been required to visit a regional office of the agency for which she worked in NSW with a work colleague to “observe the budget review process, meet the regional staff and undertake training”. She stayed overnight at a nearby motel that had been booked by her employer. In the evening at the motel she had sexual intercourse with an acquaintance. During the fun, she or her companion pulled the glass light fitting above the bed from its mount. It struck her nose and mouth. As a result, she suffered physical injuries and a subsequent psychological injury.
Rather than pursue Comcare, perhaps she or the partner could have sued the motel. Then again, if either had caused the fitting to come loose, by swinging on it, maybe either or both could have offered to pay the motel owner, or advised the motel owner to fit sex-proof chandeliers. Then again, having been away at work “to observe the budget review process, meet the regional staff and undertake training”, she might have just copped it on the chin, so to speak.
In the parallel universe that is workers compensation there is but one rule. The boss is responsible. Now, sometimes that makes sense, as workers have little control over conditions of employment. They can control their actions during and after work, or between “episodes of work”. Alas, in workers compensation world workers are drones, they are not responsible human beings.
And there is more to come.
From January 1 next year, employees will be able to go directly to the Fair Work Commission to make a workplace bullying claim. This exposes employers to additional liabilities and risks when managing staff. There is no offence of bullying per se, but there is an offence on the employer of failure to take care. Their only defence is to set and insist on good standards of behaviour. Of course, in doing so workers may object and when “managed” become stressed. Stress claims can follow.
The culture of entitlement is alive and well in the Australian workplace. The new government should work to change it.
So how did the High Court decide the matter of the bonking worker at the motel while away on work? The majority argued that there was “nothing said in the previous determining case (that) supports the notion that the employer is to be liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken”.
In other words, her employer did not induce or encourage her to muck around after work.
In dissent, Bell J. argued that the majority had “superimpose(d) on the test (case) consideration of the connection between the circumstances of the injury and the employment” and Gageler J. argued that “the particular activity in which the respondent was engaged at the time she was injured does not enter into the analysis”.
On the minority judgment my trade union friend bonking a prostitute, and doing his back, would be OK to get workers compensation. The majority had to undertake some fancy footwork to stop this case; they may not be able to hold the line forever.
The judges are not to blame here, it is the parliament. The question is whether the Abbott government has the heart to revisit the workers compensation arena where the culture of entitlement has become so comprehensively entrenched.