Australia: The flexible workforce and workers compensation: A catalyst for change?

Last Updated: 14 September 2016
Article by Aaron Clark

Modern workplaces are changing. With the advent of telecommuting and working from home arrangements, employers have been quick to offer up flexible working arrangements to their employees in a bid to attract and retain talent and boost employee engagement. No longer is it seen as the sole domain of the working parent with care-giving responsibilities. Add into the mix a generational culture shift and employees are demanding flexible working arrangements more than ever.

So how does a modern workers' compensation regime respond when the idea of a "workplace" is more fluid? What are the limits?

The recent decision of Demasi v Comcare (Compensation)1 highlights how modern decision-makers are approaching this very issue.

The case involved Ms Demasi, a presenter and producer with the ABC's science program Catalyst.

Ms Demasi broke her right hip when she tripped on an uneven surface and landed awkwardly. She made a workers' compensation claim with Comcare. It was rejected by Comcare and she sought a review of that decision. She argued on the day of the injury, her "place of work was her home" and that while she was out running, she was "temporarily absent" from that place of work "during an ordinary recess" in her employment.

Both arguments were disputed by Comcare and remained in issue on the appeal.

Place of work

The facts and circumstances surrounding the claim didn't seem to be in dispute. It was found on the evidence the ABC knew she would be working from home on the day and it was accepted the ABC's reporters and presenters would occasionally work from home depending on the work to be undertaken. She had communicated her intention to work from home on the day in question and was noted to have e-mailed one of her work colleagues that morning regarding the scheduling of an afternoon interview.

There was no dispute she was working from home on the day in question. The issue was whether Ms Demasi's home fit neatly within the definition of "place of work" contained at section 4 of the Safety, Rehabilitation and Compensation Act 1988 (SRCA).

That section provides:

" 'place of work' , in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment."

Deputy President Frost made the factual finding that, on the day of her injury, Ms Demasi's home was her place of work. He noted that while she was not "required" to attend her home to carry out her duties, modern office workers would quite often have flexible work arrangements and that sometimes the work can be carried out just as efficiently at home as it can be in a more formal office environment. He noted the definition, importantly, did envisage employment need not be confined to one location.

The Deputy President did not agree with the contention that work could be anywhere an employee carries out work functions such as checking e-mails and answering a phone call. He noted this did not allow a sufficient nexus between work, employment and injury to entitle an employee to compensation.

However, he found where the ABC knew she was working at home (and would periodically do so from time to time) and her manager also knew she was working from home on the day, it demonstrated there was an arrangement in place that was understood to both parties that was enough to bring Ms Demasi's home within this definition.

Ordinary recess

The next issue for consideration was whether she was temporarily absent during an ordinary recess under the SRCA. "Ordinary recess" is not defined in the legislation. Heavy reliance was placed upon the Victorian Supreme Court Decision of Drummond2 which relevantly stated:

"the word 'recess' in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea or 'smoko'. It is a period of rest incident to a period of labour...".3

It was found that Ms Demasi could not prove a particular schedule for taking breaks. She decided to go for the run when her morning interview was re-scheduled. Prior to the event, the ABC knew that Ms Demasi would quite often go for a run during work hours while at the office.

Ms Demasi argued the term "ordinary recess" is designed to cover any normal break provided it occurred within a continuous period of employment with knowledge of management. Comcare submitted the section required a more regimented approach to rest breaks for it to be considered an "ordinary recess" and that rest breaks needed to be at clear and regular times.

In considering this provision, Frost DP noted it was difficult to accurately define what is meant by the term "recess". He noted the change over time, stating:

"... it is difficult to mark out the precise territory covered by this expression. An easy example is the lunch break. But some of the other examples provided in Drummond's case, such as the morning and afternoon tea break, while no doubt commonplace 60 years ago, have now disappeared in many workplaces, along with the 'tea lady (it was never a man) whose arrival in those days heralded 'pens down'. And the old 'smoko', so easily identifiable and probably almost ubiquitous in an earlier era, is now something quite different, the expression often used only with heavy irony to niggle those poor souls still caught in tobacco's vice-like grip".

It was accepted that going for a run during a lunch break might enliven the provisions entitling an employee to compensation. However, he clearly decided some evidence of an established routine is required. He did not agree that running, on an ad hoc basis, during the course of the working day could be considered an "ordinary recess" under section 6(1)(b) of the SRCA and affirmed the decision of Comcare at first instance.

So what does this mean for Queensland based employers and insurers?

  • The definition of "ordinary recess" is slightly different under the Commonwealth and Queensland legislation. That is where a thorough assessment of the factual matrix of the claim will be important.
  • The definition is broader in Queensland than the federal equivalent. Where there is an agreement (formal or informal) an employee can work from home, their home can be considered a "place of work" (or for Queensland, "place of employment").
  • Remember, even if the worker is working from home by agreement, there must be an attendance "as required under the terms of the worker's employment" to bring them within the ambit of the "ordinary recess" claim provisions. The applicant must always prove their attendance was due to employment. This will generally require them to prove their work had commenced before their recess for the provision to operate.
  • Courts and tribunals have adopted a somewhat structured approach to what is an "ordinary recess". Workers also need to prove there was an established routine. Absent this evidence, employees who work from home will have difficulty meeting this definition.

In Queensland, "ordinary recess" claims and "journey" claims are the only claims where the worker doesn't have to meet the added requirement of employment being a "significant contributing factor to the injury". In all other claims, regardless of the place of work, a worker will still need to prove the necessary link between their employment and the injury.


1 [2016] AATA 644

2 Drummond v Drummond [1960] VR 462

3 Ibid at 463-464

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Aaron Clark
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