‘AFP may be forced to ignore crime on work breaks due to a compensation law loophole’ is the headline of an article appearing in the Melbourne Herald Sun (12 June 2014, ) and which has been sent to me for comment.  The correspondent who sent it me asks ‘Are things getting out of control and out of touch with reality?’

I think they are, but it’s not the law, it’s the Australian Federal Police Association that’s ‘getting out of control and out of touch with reality?’  We are told that the Association has:

… sounded the alarm over the federal government’s Safety, Rehabilitation and Compensation Amendment Bill, which would alter the current Commonwealth compensation arrangements for injuries sustained by employees while they are on a designated “recess” break.

The proposed amendments would also wind back compensation arrangements for AFP employees who “voluntarily and unreasonably submitted to an abnormal risk of injury” — which police claim, could include most of their day-to-day work.

The article goes onto say “it is understood the government will argue it is highly unlikely that police officers discharging their duties would be seen as ‘voluntarily and unreasonably submitting to an abnormal risk of injury’”, and that has got to be correct.

The Safety, Rehabilitation and Compensation Act 1988 (Cth) provides for workers compensation for Commonwealth employees including members of the Australian Federal Police (AFP).   Workers compensation is ‘no fault’ that is you don’t have to prove anyone was negligent, only that the injury arose out of or in the course of employment.   Section 6(1) of the 1988 Actcurrently says:

… an injury shall, for the purposes of this Act, be treated as having … [arisen out of, or in the course of, his or her employment] if it was sustained:

(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;

Section 6(3) says:

Subsection (1) does not apply where an employee sustains an injury:

(a) while at a place referred to in that subsection; or

(b) during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

As the Act currently reads, if you are at your place of work, or temporarily absent during an approved recess, perhaps you’re walking across the road to get a coffee, and you get injured then that injury arose out of your employment and you’ll be entitled to workers compensation (provided of course you meet all the other requirements set out in the Act).  That rule will not apply however if, whilst at the place of work or during the approved recess, the employee ‘sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury’.

The Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) will amend these sections.  If and when the Bill is passed into law the sections will say:

… an injury shall, for the purposes of this Act, be treated as having … [arisen out of, or in the course of, his or her employment] if it was sustained:

(b) while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment;

And

Subsection (1) does not apply if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

In his second reading speech, Mr Pyne (Leader of the House and Minister for Education) (Hansard, 19 March 2014, p 2380) said:

Currently workers’ compensation is payable for injuries that occur during recess breaks, even if the employee is not at the place of work when the injury occurs, contrary to the position in South Australia and Tasmania.

… workers’ compensation could be payable, for example, where an employee sustains an injury while shopping, at a restaurant or playing sport away from the employee’s place of employment during a lunch break. This is despite the employer having no control over the activities of the employee or the environment in which the employee engages in such activities. The proper avenue for people to seek recompense for injuries under such circumstances is through the owner of the premises where an injury occurred, not through their employer who has no control over the matter.

This bill addresses this unfair arrangement. Workers who are injured at work, even while having a recess or lunch break, will remain fully covered. Injuries that occur while the worker is away from the workplace undertaking activities associated with the employee’s employment or at the request or direction of the employer will also still be covered.

That’s true.   The amended s 6(1) says an injury arises out of one’s employment if it occurs at the place of work even during a recess break. The place of work ‘includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment’ (Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4).  Some people work all over the place, in other people’s homes and business and on the street, others have very defined ‘places of work’.

The amendment to s 6(3) reflects that change.  It used to disqualify an employee who ‘voluntarily and unreasonably submitted to an abnormal risk of injury’ at their place of work or whilst on a break even if not at their place of work.  That second condition will no longer be required so has been removed.   If, at your place of work where ever that is, you ‘voluntarily and unreasonably submitted to an abnormal risk of injury’ you don’t get compensation.

The police association, we are told, say this is problematic because ‘most of their day-to-day work’ involves both voluntary and unreasonable submission to abnormal risk of injury but that is, to put it bluntly, rubbish or it should be.

First note that this is not a new clause or test.  It’s simply being limited so that Commonwealth employees don’t get compensation when away from work on a rest break.  The test about ‘voluntary and unreasonable submission to abnormal risk of injury’ is already in the Act.  If it was a problem because police activities are dangerous then it would have caused a problem before now.  This is nothing new.

Second police may be exposed to a high risk of danger but not an unreasonable submission to an abnormal risk when what is normal and abnormal and what is reasonable and unreasonable has to be judged in the circumstances.  Police are trained and equipped to face dangerous situations.   That is not ‘abnormal’ but hopefully they are trained not to make ‘unreasonable’ submissions to that risk.

There is plenty of case law too that police who put themselves in harms way when executing their duty are not acting ‘voluntarily’ and are therefore not defeated by the common law defence of voluntary assumption of risk.  From Haynes v Harwood [1935] 1 KB 146 where a police officer stepped in front of an escaping  horse to Hirst v The Nominal Defendant [2005] 2 Qd R 133 where a police officer was injured in a high speed pursuit, the courts have refused to find such actions were ‘voluntary’,  In Hirst, Keane JA said (at [24])

In my view, the position of a policeman responding to the call of a legal duty to prevent unlawful conduct on the highway and to protect the safety of those making lawful use of it, must afford a stronger illustration of this point than the rescue cases. In such a case, the “free choice” of the police officer as to his conduct is constrained by the twin circumstances of his legal duties as a police officer, and the occurrence of the unlawful conduct which it is his or her duty to prevent.

In those circumstances the officer was not voluntarily accepting the risk of injury any more than a police officer who faces danger in the course of his or her duties is voluntarily submitting to an abnormal risk of injury.

As for having to respond whilst on a recess, the obvious implication is that the recess stops.  If a police officer is having a coffee across the road from work and sees a crime and intervenes, at that point they are no longer on their break but at work.  The place of work is anywhere where an employee is ‘carrying out the duties of his or her employment’ and if the duty is to act   ‘while off-duty, on a recess break or during travel to or form the workplace’ then that becomes their place of work.

Even if you define the place of work as the police station, as the Minister noted ‘Injuries that occur while the worker is away from the workplace undertaking activities associated with the employee’s employment or at the request or direction of the employer will also still be covered’ and they are – see s 6(1)(c).

In conclusion, a police officer who gets injured, whilst on a break, away from the police station and who is not performing his or her duties as a police officer, is excluded from Commonwealth Workers Compensation.  A police officer who voluntarily and unreasonably submits to an abnormal risk of injury is also excluded but a police officer who faces a risk of injury in the performance of his or her duties is not voluntarily submitting to that risk; facing a risk in the course of policing is not ‘unreasonable’ taking into account all the circumstances of their duties.  Further this section is not new and if it has not caused problems in the past, there’s no reason to think it will in the future.

I’m afraid I just can’t see the issue.