Widow Wins Compo

The Queensland IRC has allowed a train driver's widow's compensation claim to proceed after finding that the eight-hour break between shifts that the driver was on when he died was a recess break.

In April 2007 the worker was required to drive a train from his home town of Toowoomba to Brisbane.

He was then obliged to "lay off" for eight hours before making the return trip, in accordance with Queensland Rail procedures.

Motel-style accommodation was provided to drivers to allow them to rest for this period.

The worker was required to report back to the railway station at approximately two o'clock the following morning. However, after failing to respond to a wake-up call, colleagues entered his room and found him unconscious. He had suffered a heart attack, and later died.

It was found and agreed to by all parties that his employment was not a significant contributing factor to the injury.

Q-COMP, therefore, denied a subsequent compensation claim made by the worker's wife.

Determining the applicable subsection of the Act

The worker's wife appealed the decision, contending that the worker was, in fact, on a recess break during the period he was in the motel room.

According to ss34(1)(c) and (2) of the Queensland Workers' Compensation and Rehabilitation Act 2003, Deputy President Deirdre Swan heard, employment need not be a significant contributing factor to an injury for the injury to be compensable if the worker is absent from the place of employment in the course of an "ordinary recess".

Q-COMP, however, referring to precedent, argued that an eight-hour break was far too long to be considered a recess, or a "short break within a normal period of work during a day", and that the worker was instead away from his place of employment in the course of his employment.

The accommodation provided by Queensland Rail should be considered an extension of or a "place of employment", it contended.

That being the case, the worker's injury would only be compensable should his employment be a significant contributing factor to the injury, in accordance with s34(1)(b) of the Act, which it was not.

The worker's wife, in turn, contended that under legislation there was no set time period that constituted an ordinary recess, and that the definition of "ordinary recess" must be determined on the individual facts of each case.

She noted that as the worker wasn't paid for the eight-hour break he could not, by definition, be considered to be working, or in a place of employment.

In addition, the eight-hour break was compulsory, she said, and therefore "a break between two periods of work", in accordance with the principle of an ordinary recess.

"It would be anomalous if a worker who has a heart attack in McDonalds during a lunchbreak is entitled to compensation," she contended, "but a worker who is compelled by the employer to take a rest from work away from the place where the worker performs his work is not entitled to compensation. Such an anomaly in unlikely to have been intended by the legislature."

Deputy President Swan agreed.

She rejected Q-COMP's assertion that the eight-hour break was not a recess because the driver was free to do what he wished for that period provided he was fit for the commencement of his next shift.

"There was more than an expectation that drivers would rest [in the motel rooms] during this break," she said. "That was the purpose of the lay off. The Certified Agreement [between Queensland Rail and unions] spelt out in great detail what was to be provided for by Queensland Rail to implement its belief that drivers would rest during the lay off."

Deputy President Swan, in accepting the worker's wife's claim, found that the eight-hour lay off was an ordinary recess for train drivers, and a longer duration than recesses referred to in precedent merely due to "the nature of the industry and the type of job in question".