Is an employee working in Indonesia entitled to compensation in Western Australia

16 May 2019

A District Court Judge has allowed an employee to claim workers’ compensation in Western Australia after he contracted dengue fever when he had been working in Indonesia for 11 months.

In issue

  • The Judge had to decide whether an employee, who had normally worked in Western Australia, but who had been working in Indonesia for 11 months, was entitled to compensation payments under the Western Australian workers’ compensation system.

The background

The Applicant completed his apprenticeship with the Respondent between 1974 and 1979 in Western Australia. From 1980 the Applicant worked on and off for the Respondent. The Applicant resided and worked in Western Australia from 1974 through to 2014 except in 1982 to 1983 when he was working in Sydney, and 1990 to 1993 when he worked in Brisbane. He was not employed by the Respondent during those periods.

From October 2006 through to October 2015, the Applicant was employed by the Respondent as a plumber in Western Australia. In early 2014 the Applicant was performing his duties as a plumber employed by the Respondent and working in Acacia Prison. The Managing Director of the Respondent approached the Applicant and asked if he would work for the Respondent in Jakarta. It was anticipated that the work would take approximately three months.

The Respondent paid the Applicant's airfares and organised and paid for his accommodation. The Applicant remained employed by the Respondent whilst in Indonesia. The work took longer than three months, and the Applicant agreed to stay until the job was finished. The Applicant intended to return to Western Australia when the Jakarta job was complete and continue his employment with the Respondent in Western Australia. The Applicant contracted dengue fever when he had been in Indonesia for around about 11 months.

The registered office and the head office of the Respondent was in Western Australia and the Managing Director resided in Western Australia.

The decision at trial

Section 20 of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) provides that compensation is only payable in respect of employment that is connected with the State. Section 20 of the Act provides a cascading series of steps or tests for determining whether the worker's employment is connected with the State.

The first test relates to the state in which the worker usually works in that employment. The second test relates to the state in which the worker is usually based for the purposes of their employment. The third test is the state the Employer’s principal place of business in Australia located. It is only necessary to consider the second or third test if the use of the earlier test does not result in one State being identified.

The Respondent argued that s20 should not be used to determine liability when a worker is injured overseas. His Honour rejected this argument, and stated that if the worker's employment is connected with this State then compensation under the Act would be payable irrespective of whether the worker was working in another state or overseas.

His Honour found as follows:

  • The Court is required to consider and take into account the 12 month work history of the worker and give it such weight as the Court determines but a Court is not limited to that 12 month period in considering in which State the worker usually worked and can have regard to the greater work history particularly in considering what were the intentions of both the worker and the respondent. The Court has the discretion as to what work history they should consider beyond the 12 month period.
  • The Applicant's work history clearly establishes that he habitually or customarily works or works in a regular manner in the State of Western Australia.
  • Under the first test, the Applicant usually worked in his employment in the State of Western Australia.
  • If the first test did not apply, then under the second test, the Applicant was usually based for the purposes of his employment in Western Australia.
  • If the second test did not apply, then under the third test, Western Australia was the state where the Respondent's principal place of business was located.

Implications for you

Employers need to ensure they maintain appropriate insurance when employees work in other states and overseas. The determination of the state of connection can be complicated, and Employers should seek advice to ensure they have appropriate insurance in place.

Benson v R P Leisk Pty Ltd [2019] WADC 30

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