AMMA Workplace Relations Consultant Georgina Porter (pictured) analyses a landmark decision for safety on remote mine sites after a fly-in, fly-out (FIFO) employee injured while playing cricket between shift change-over was ruled eligible for workers compensation.
The employee worked for Byrnecut Australia at Oz Minerals’ Prominent Hill site in South Australia on a roster of seven days of night shift (6pm to 6am), followed by seven days of day shift (6am to 6pm) with a 24 hour rest period between shift changeover.
On the day of his injury, the employee had just completed the cycle of night shifts and was attempting to stay awake for the whole day before the changeover to day shifts to help reset his body clock.
Prior to the incident the employee had finished his last night shift and ate breakfast at the site camp before going to the bar in the mess where he claimed to consume ‘roughly five drinks’. He disputed a company report he had consumed 10 standard drinks from when the bar opened until it closed (between 6am to 9.30am).
The employee then played cricket between 10am until about midday, at which time he hurt his left knee while batting. A record of the incident showed his blood alcohol percentage was 0.048%.
In a statement explaining why he was playing cricket, the employee said sporting activities formed part of his shift changeover routine.
“Prior to my injury, on the day of shift change, I would stay at the bar until closing, say 9:30 am/10.00 am and then play some basketball, cricket or football between approximately 10.00 am and 2.00 pm,” he said.
“I would then take a nap in my room before dinner. I generally go to dinner at around 5 pm. After dinner I would go to sleep ready for the next day.”
Under cross-examination he agreed that the decision to play cricket on the day was a spontaneous decision and his employer did not encourage, induce, direct or request him to play cricket on this occasion.
The state’s work injury insurance provider and regulator of the South Australian Return to Work scheme, ReturnToWorkSA, rejected his bid for workers compensation, claiming the injury occurred in a social or sporting environment and wasn’t sustained in the course of his employment.
However in March last year, the South Australian Employment Tribunal determined the injury was in fact compensable, as playing cricket had a connection with his employment when considering the duties imposed by the company’s Code of Conduct and Policies.
“The activity forms part of his employment therefore the injury did arise from employment,” Deputy President Michael Ardlie said.
ReturnToWorkSA subsequently appealed the decision, arguing a lack of evidence to suggest playing cricket assisted the employee to sleep during the transition from night shift to day shift.
It also claimed that the assertion that the employer’s policies encouraged employees to be active to transition between shifts was incorrect.
However, the South Australian Employment Tribunal bench found employment was a “significant contributing cause of the injury” as he was partaking in a sporting activity “permitted by the employer in premises the employer arranged for him to use whilst performing work under a contract of employment at Prominent Hill”.
The employer’s Fitness for Work Policy stated it would “educate staff that fitness for work may be influenced by fatigue, illness, injury, stress or the inappropriate use of alcohol or drugs’ and will ‘actively promote a culture of fitness for work and a healthy lifestyle”.
It also directed employees to manage their rostered time off to prevent the effects of fatigue from impacting on their ability to perform their work, such as adequate sleep and taking particular care to prevent fatigue at critical times, such as returning to site or shift change.
The appeal was dismissed.
Read the full decision here.
Implications for employers
Remote mining operations, particularly where employees live and work on-site for the full duration of their swing, can present unique challenges for employers in terms of what constitutes “work”.
Often these challenges manifest in unusual workplace relations and/or work health and safety matters or disputes that challenge precedents around employer liability.
This particular matter is noteworthy for the implications for fatigue management and well-being policies.
Namely, that the employer’s Fitness for Work Policy promoted “a healthy lifestyle”, and sports activities including cricket were permitted on the premises, were deemed more important to finding the injury was obtained “at work” than the fact the employee was on a 24 hour rest and recovery period. The employee’s elevated blood alcohol level, which could be argued put him in breach of the site’s appropriate alcohol consumption policy, also had little effect on the decision.
The decision is a further reminder to employers operating at remote mine sites that tribunals will typically take the view that an employee was “at work” during anytime they are on-site, even when outside of prescribed shift times.
This is why best practice employment, safety and well-being policies and practices, underpinned by effective engagement and communication, are essential.
AMMA’s team of skilled and experienced workplace relations consultants are available to provide advice on effective employment, WHS and employee communications practices and policies.
Contact your local AMMA office for more information.