When is a person on a work trial a ‘worker’ under workers’ compensation legislation?

The plaintiff was injured while on a work trial at a bakery. The defendants argued that she was a worker under the WA workers’ compensation legislation.

In Issue

  • Whether a person on a work trial is a ‘worker’ within the Workers’ Compensation and Injury Management Act 1981 (WA).

The Background

The defendants were a husband and wife who operated a bakery in Morley. The plaintiff commenced a work trial for two days at the bakery to perform the duties of a customer service ‘worker’. During the course of the work trial, the plaintiff fell and fractured her wrist.

The plaintiff sued the defendants in the District Court for negligence, alleged breaches of duties owed by them as occupiers of premises under the Western Australian occupiers’ liability legislation, and for the breach of statutory duty under the Occupational Safety and Health Act 1984 (WA).

The defendants raised a preliminary issue, arguing that at the time of the incident the plaintiff was a ‘worker’ under s 5 of the Workers’ Compensation and Injury Management Act 1981 (WA) (the Workers’ Compensation Act).

That section provides that a ‘worker’ is any person who has entered into or works under a contract of service or apprenticeship with an employer, but does not include a person whose employment is of a casual nature and not for the purpose of the employer’s trade or business.

If the plaintiff was a ‘worker’, the effect of the Workers’ Compensation Act is that she would not have been entitled to bring these proceedings at that stage, because she would have had to make an election to retain the right to seek damages pursuant to the Workers’ Compensation Act. The plaintiff would also be required to establish a degree of permanent or whole person impairment of at least 15%.

If she was not a ‘worker’, she would not have been able to bring and pursue these proceedings.

The Decision of the District Court

The District Court found that the plaintiff was a ‘worker’ at the time of the incident because the totality of the relationship between her and the defendants established a contract for service. The subjective intentions of the parties were irrelevant.

The matters which led to the contract for service being established were as follows:

  • The duration of the contract was outlined (in this case the trial was for two days).
  • The purpose of the work trial was not to give the plaintiff work experience, or training and skills. The plaintiff applied for the job on the basis of her past experience and skills, and the work trial was predominantly to exhibit those skills.
  • Both parties’ reasons for entering the contract were commercially motivated. The plaintiff sought gainful employment and the defendants needed to replace a resigning worker.
  • There was an obligation for the plaintiff to be productive or performing work that was an essential part of the employer’s business. The plaintiff was required to serve customers and perform tasks, rather than observe or develop her skills. The work she was conducting was that which the other employees would ordinarily do.
  • The plaintiff was expected to perform tasks and demonstrate skills, not to undergo training or familiarisation by observing.
  • The defendants had control over how the plaintiff performed her work. The plaintiff was using the defendants’ goods and equipment, could not decide her hours or methods of work and her work duties were an essential part of the business.
  • Benefits were being obtained by both parties, with the plaintiff being assessed and legally obliged to be paid, and the defendants having the opportunity to observe the plaintiff and receive her assistance in the business for two days.

Implications for you

When determining whether an individual is a ‘worker’ under workers’ compensation legislation, the totality of the relationship between the individual and the employer must be considered.

In the case of work trials, there is a difference between a trial where the prospective employee is being trained and developing new skills, and where a prospective employee is exhibiting his or her existing abilities to the employer.

This case is also a reminder that an employment contract can be a purely verbal agreement but that the essential terms of a contract for service must be objectively established.

Please note that the definition of ‘worker’ may be worded slightly differently among state legislation, however this case will still be relevant in informing common law interpretations in all jurisdictions save for Queensland and the Northern Territory, where the definition of ‘worker’ includes additional elements.

Published by Barry Nilsson Lawyers