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On 11 April 2019 the Australian Government assumed a caretaker role, with an election to be held 18 May 2019.
Information on websites maintained by Comcare will be published in accordance with the Guidance on Caretaker Conventions until after the election and conclusion of the caretaker period.
The following questions and answers provide general advice on workers’ compensation coverage and an employer’s duty of care and health and safety obligations at employer-endorsed social functions under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) and the Work Health and Safety Act 2011 (WHS Act).
If an employee is injured at such an event, or when travelling between their workplace, the event and their residence, they are entitled to lodge a claim for workers’ compensation.
Each claim will be determined on its merits taking into account individual circumstances. The employer will have the opportunity to make a statement on each claim and to affirm or assert factual information about the event and the circumstances of the employee’s injury.
What are the duties and responsibilities of employers in relation to official parties and employer sanctioned events?
As detailed in section 19 of the WHS Act, employers should always assess the hazards and risks of any proposed function or event. The likelihood and consequence of an accident or injury occurring should be considered, as well as what control measures need to be put in place to eliminate or reduce the risk. Risk control measures should be consistent with a reasonably practicable approach and the planning for any function or event should be documented where possible. Employers should consider:
- the location of the function—is it in a workplace under the employer’s control?
- if the location of the function or event is at an external location other than a workplace under the control of the employer—has the location been assessed for any hazards such as the capacity of the location and associated issues such as access and egress?
- whether employees should be provided with travel to and from the function or event
- whether clear guidance or policy has been developed and communicated to employees—does it address responsible drinking, anti-social behaviour and other possible code of conduct issues?
What duty of care obligations do employers and employees have in relation to alcohol consumption at an event or function that is endorsed and/or arranged by the employer?
Alcohol use is a potential risk factor relating to both safety and health. Depending on the circumstances, it could potentially be involved in alleged breaches of Sections 19 (employer’s duty of care) and 28 (employee’s duty of care) of the WHS Act.
Section 19 of the WHS Act requires employers to 'take all reasonably practicable steps to protect the health and safety at work of the employer's employees'. This includes undertaking risk assessments and putting suitable risk controls in place to reduce or eliminate any risk associated with the function or event. It would be good practice for the employer to develop an internal policy addressing the responsible consumption of alcohol on work premises, during work time and also for employer functions outside of the workplace. Employers should also:
- set clear boundaries for employee’s behaviour at work related functions
- set clear start and finish times for functions
- for functions held at the workplace, ensure that employees vacate the premises at the end of the function
- where possible, limit excessive alcohol consumption
- take steps to address workplace attitudes that condone excessive drinking
- ensure that all employees are fully aware of the repercussions of drinking in excess of the legal driving limits
- ensure that appropriate and adequate care is given to any employee who is affected by alcohol during a work-related event or function
Employers should also ensure that alcohol is not made available from the function area past the end time as stipulated for the function or event.
Finally, it is the employee’s responsibility to consume alcohol legally and responsibly, to conduct themselves in line with the APS Code of Conduct and to comply with their employer’s behaviour and conduct policies.
Are employees covered for staff parties that are held on-site or off-site, whether during the working day or after hours?
Attendance at any social function or event held at the employee’s place of work, including during an ordinary recess or after hours would probably attract workers’ compensation coverage under the SRC Act. These events would normally be considered ‘for the purposes of employment’.
Under this provision, workers’ compensation coverage would not extend from the on-site venue to a venue outside of the place of work if a group of employees decided to continue on. Cover for an injury would not exist if the employee was socialising in an area that the employer does not control, such as outside the front of the work premises.
If the social function or event was held at the employees’ usual place of work, travel between the employee’s residence and the event would not be covered.
Attendance at a social function or event held outside of the employee’s place of work may attract workers’ compensation coverage under the SRC Act, provided the employee was temporarily absent from their place of work undertaking an activity associated with their employment, or at the direction or request of the Commonwealth.
A social function or event would be considered ’associated with employment’ if it is endorsed as such by an employer. For example, if an employer arranges an event, specifies the venue and time and encourages employees to attend, then an employee will likely be covered whilst at that venue during the specified times. Coverage is likely to exist for events arranged in this manner, whether during work time or after hours.
When determining workers’ compensation coverage for an event where the employer has not endorsed it as ‘associated with employment’, Comcare will consider such factors as:
- whether senior officer(s) were in attendance at the social function or event
- if not in attendance, did the senior staff support the event by making arrangements to allow it to proceed?
- whether the social function or event was organised during work time, using work materials such as printed tickets or email invitations
- whether the employer arranged or funded transport to and from the social function or event
- whether employees were considered to be on duty for the duration of the social function or event or were granted special leave in order to attend the social function or event
Are there any kinds of injury which might not be covered at a work related event?
Coverage would be provided for injuries sustained at a work-related event subject to section 14(3) of the SRC Act. However, this excludes payment of compensation for injuries caused by ‘the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment’.
Employees under the influence of alcohol or non-prescription drugs would not be covered as they are taken to be guilty of serious and wilful misconduct. This may also apply to employees who breach the APS Code of Conduct or any other relevant guidelines.
Are employees covered for travel to and from a staff party that is held off-site?
If the offsite activities are employer sanctioned it is likely that travel between the workplace and an offsite venue/location would be considered ‘in the course of ‘employment’. Coverage is likely to exist if:
- the travel takes place during work hours, including an ordinary recess
- the travel is undertaken with the knowledge and consent of the employer
- the employee is considered to be on duty while travelling
- the travel is unavoidable, the function is sanctioned by the employer and the employee has no right of attendance other than as an employee
As the employee is not at their usual place of work, it is possible that coverage may also exist for those that travel more or less directly to home from the function. ‘Directly’ means no attendance at ‘after event parties’ or other social activities on the way home. The usual exclusionary provisions such as intoxication would apply.
Am I covered if I party on afterwards?
Coverage for injury would probably not exist if an employee chooses to ‘party on’ after an employer sanctioned event. Employers should make it clear that social functions or events away from work are only endorsed for a specific duration. Coverage will probably not exist after that time because the employee will no longer be undertaking an activity that is ‘associated with their employment’