In a world where the place of work has become less defined, with hot-desking and working from home becoming the new norm, it is important to consider when an injury sustained at home will be held to arise “in the course of employment” for the purposes of the Workers’ Compensation and Injury Management Act 1981 (WA).
Dixon CJ at 556 importantly stated:
“the words ‘arising in the course of the employment’ describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service.”In other words, an accident is considered to have occurred in the course of employment, when the task is in aid of or incidental to the work.
The phrase was further considered in the landmark decision of Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473.
The implication of this case was that the scope of the phrase “in the course of employment” was broadened to include intervals and interludes which occur during the course of employment, where the employer has induced or encouraged the employee to spend those breaks at a particular place or in a particular way.1
The scope of the phrase has since come to include various circumstances, such as:
In the matter of Van Oosterom v Aust Metropolitan Life Assurance Co Ltd  VR 507, liability for workers’ compensation was considered when an insurance agent who worked
from home with no set hours suffered a heart attack on a Saturday.
To provide some context as to the nature of his employment, the Applicant:
The Court found that in such cases, there is no fixed place of employment; a liberal approach must be taken in regards to place.
What is of importance however, is that when the accident or injury occurs, the worker is performing a task which is incidental to his employment.
An example given by the Court was that if the worker was to be performing clerical work in the lounge room, but was required to travel to another room to collect ink, he would still be in the course of his employment.
In Re Ledwidge and Optus Administration Pty Ltd  AATA 58, the Administrative Appeals Tribunal found that a field technician who was cleaning his work vehicle at home on a Sunday was in the course of his employment.
The nature of his employment was that:
It was important that the Applicant was encouraged to have a clean vehicle; this suggested that cleaning the vehicle outside usual work hours was a reasonable task and incidental to his work duties.
In the matter of WorkCover/EML (Lauman Pty Limited t/a Roseworthy Roadhouse)  SAWCT 55, the worker and her husband were sole directors and operators of the Roseworthy Roadhouse.
The worker and her husband resided in the living quarters of the roadhouse, and on one occasion the worker fell down the stairs on her way to the toilet during the middle of the night.
She was found not to be in the course of her employment, with regard had to the following factors:
This fall was found to be in the course of employment as the coughing constituted a need of absence from the work station for necessities of nature.
She fell again on another journey down the stairs; on this occasion her supervisor had asked her to check if her screen door at home was locked. This was established to be in the course of employment because the fall occurred whilst performing an instruction from her supervisor.
In Demasi and Comcare  AATA 644, the worker was a producer and presenter for the ABC. She regularly worked from home and did so on the date of the incident. She would frequently go jogging whilst working from home during work hours (not during her specified lunch break).
The Applicant injured herself on one of her on morning runs and the Tribunal found that her injury was not in the course of her employment.
Some of the factors considered included:
More recently, albeit in the industrial relations context, the issue was considered in the matter of Australian Maritime Officers’ Union v Remick Pty Ltd T/A Pro Dive Cairns  FWC 431 (30 January 2020).
This case does not specifically address working from home; however, it does demonstrate the element of a worker’s “free will” vs “obligation to the employment” as a factor which is taken into consideration to determine if they were in the course of employment.
The Commission was tasked with determining whether boat masters and crew of a Great Barrier Reef tour boat were in the course of their employment when assisting passengers during unpaid meal breaks.
The Deputy President took into account the following factors:
On the facts established, the Commissioner found that the crew were in the course of their employment.
However from looking at the patterns of interpretation of the phrase, we can establish a guideline as to what factors need to be considered. These factors are:
Ultimately, such matters require an element of common sense; to answer the question of whether the worker was acting under the direction of their employer, incidentally/out of necessity to perform a work duty or if they were “free from the employment and the duties of the employment”.6
This case law update is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.
1 J Fiocco and M A Tedeschi, ‘Section 5 Terms Used’, Workers’ Compensation and Injury Management Act 1981 Annotated Legislation.
2 Favelle Mort Ltd v Murray (1976) 133 CLR 580.
3 L J Newing & Co v Newing (WASC, SCL 8531, 12 September 1990, unreported).
4 Badawi v Nexon Asia Pacific Pty Ltd  NSWCA.
5 WorkCover/EML (Lauman Pty Limited t/a Roseworthy Roadhouse)  SAWCT 55.
6 His Honour Deputy President Judge McCusker, West v WorkCover/QBE  SAWCT 1999 at .