If you work in the mining industry you may be familiar with the term fly-in fly-out or FIFO. For those of you who are not familiar with the term, FIFO is a method of employing people in remote areas by flying them temporarily to the work site instead of relocating employees and their families permanently.
Employees are flown to the worksite where they work for a number of days/weeks and are then flown back to their home-towns for a number of days rest. FIFO workers are very common in the mining industry, as mines are often located very far from towns and cities. Unfortunately, FIFO worker injury claims are common, with particular predominance of psychological injuries and claims.
So what happens if you sustain an injury while on site and when are you covered under the workers compensation scheme? We take a look at the options for FIFO worker injury claims.
To be entitled to bring a claim for negligence against your employer you must first have an accepted statutory claim with WorkCover Queensland for your injury.
For a workers’ compensation claim to be accepted, the injured party needs to be a “worker” (as determined by the Workers Compensation and Rehabilitation Act 2003) and the personal injury they have suffered must have arisen out of, or in the course of their employment.
For workers based in a camp situation such as FIFO workers, there is additional level of cover to include some activities that occur outside working hours.
This includes injuries sustained by a worker while participating in an activity that the employer has encouraged them to undertake e.g. a football match that an employer has encouraged their workers to play and provided a uniform for.
There are however some exceptions to the additional level of cover.
Workers will not be covered for injuries sustained while:
- playing sport / going to the gym in their own time with no encouragement from the employer;
- undertaking an activity of their own volition including going to the pub, going for a personal drive off-site, going out for food off-site etc; and
- an injury sustained while doing an activity that is not work related.
Just like with any other worker FIFO workers are also covered for journey claims.
FIFO worker or not, if you are injured on a journey between your home and place of employment you may be entitled to compensation.
With respect to a claim for negligence against the employer the principles are the same for FIFO workers as for non-FIFO workers. An employer owes their employee a duty of care to provide a safe working environment by ensuring their employees are not exposed to risks to their health and safety.
If they fail in this duty, and an employee suffers personal injury, then they may be liable in negligence.
This duty also extends to the mental health of employees. These claims are becoming increasingly common among all FIFO worker injury claims. A recent Western Australian study has found that FIFO workers are suffering from depression at more than twice the rate of the Australian population.
The isolation, long shifts, and being away from friends and family are thought to be major contributing factors.
So can an employee make a claim for psychological injury?
When assessing a psychological injury for the purposes of accepting a statutory claim, WorkCover Qld will assess whether the injury is a personal injury arising out of, or in the course of employment. For a psychological injury, the employment must be a significant contributing factor to the injury.
WorkCover Qld will not accept a statutory claim for a psychological injury if it is determined that the injury arose out of the following circumstances:
- reasonable management action taken in a reasonable way by the employer in connection with a worker’s employment;
- a worker’s expectation or perception of reasonable management action being taken against a worker;
- action by the authority or an insurer in connection with a worker’s application for compensation.
For a common law claim for negligence against the employer, a psychologically injured employee would need to prove that it was reasonably foreseeable by the employer that they were likely to suffer a psychiatric injury as a result of the work stressors that they claim caused their injury.
For example a FIFO worker would need to prove that it was reasonably foreseeable by the employer that requiring their employee to work away from home in an isolated area for days/weeks at a time was likely to cause that worker a psychological injury.
This may be hard for an injured worker to prove as the ‘reasonably foreseeable’ hurdle is sometimes difficult to overcome.
While these FIFO mining roles are often quite lucrative for the employee it seems that many FIFO workers are sacrificing their mental health for the riches.
Whether or not a FIFO worker can be compensated for their psychological injury will depend on a number of factors.
Some companies, such as Rio Tinto, do have in place a range of positive mental health programs for employees and families.
There may be some comfort for these employees in knowing that they may be covered for an injury sustained while participating in extracurricular activities outside of normal work duties. Meaning that type of FIFO worker injury claims often extend further than those of standard workplaces.
While a common law claim for damages may be tough for a psychologically injured employee to prove, one must remember that they are not altogether impossible to succeed in and each case should be assessed individually.
