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QLD Workers’ Compensation: QIRC considers appeal concerning whether an individual was a ‘worker’ within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
The Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’) establishes a workers’ compensation scheme for workers who sustain injury through the course of their employment. Which injured individuals are considered ‘workers’, and therefore eligible to participate in the scheme, is defined in the Act, specifically at section 11 and schedule 2.
The Queensland Industrial Relations Commission (‘QIRC’) recently heard an appeal made by an Appellant whom the Queensland Workers’ Compensation Regulator had decided was not a ‘worker’ within the meaning of section 11 of the Act.
The Appellant, Mr Marco Del Bono, was ninety-two years of age as at the date of the appeal. The Appellant was born and currently resides in Italy. He had travelled to Sydney in 1948, and took up various jobs between his arrival in Australia and 1950, when he travelled to Mount Isa. The Appellant claimed that in Mount Isa he was offered and subsequently accepted employment with Mount Isa Mines Limited. The Appellant contended that he remained employed by Mount Isa Mines Limited from 1950 to 1955.
On 26 May 2020, the Appellant was diagnosed with a silica related dust fibrosis. He lodged a workers’ compensation claim on 21 September 2021, with his application for compensation being rejected on 9 June 2021.
An application for review was subsequently made, and the Queensland Workers’ Compensation Regulator confirmed the original decision of the insurer, on the basis that Mr Del Bono was not a ‘worker’ in accordance with s 11 of the Act.
The evidence before the Commission included affidavits and oral evidence provided by both the Appellant, as well as a HR Officer employed by the current operator of the mine at which the Appellant allegedly worked, Glencore.
HR Officer
The HR Officer provided evidence that the Appellant’s employment file for the time that he was employed by Mount Isa Mines Limited could not be located on an electronic database, as only records dating back to the 1970s were recorded. The Appellant’s employment records were similarly absent from the physical files held by Glencore, but the HR Officer conceded that it was common practice for paper files to not be kept for a period longer than twenty (20) years. Also of relevance was the HR Officer’s evidence that: –
She was not aware of the practice in 1950 with respect to how employment was offered to workers by Mount Isa Mines Limited;
It was standard practice in 1950 for employees of Mount Isa Mines Limited to live at Barracks owned by the company, and that board was taken from employee’s salary; and
She was not aware as to whether Mount Isa Mines Limited paid its employees a weekly wage during the relevant period.
Appellant
The Appellant provided evidence with respect to the circumstances under which he came to be employed by Mount Isa Mines Limited. The evidence further elucidated upon, in some detail, his employment duties and the working conditions at his place of work, along with the accommodation he lived in at the time, being the Barracks owned by Mount Isa Mines Limited. The Appellant provided details with respect to the interpersonal relationships formed with his colleagues, and annexed to his affidavit were photographs of the Appellant allegedly standing outside of Mount Isa Mines Limited’s Barracks, mess, and recreational areas. He was, however, unable to recall the name of any of his colleagues at Mount Isa Mine Limited.
The Queensland Workers’ Compensation Regulator submitted at the appeal that the Appellant’s evidence was unreliable, due to an absence of corroborating evidence and the Appellant’s failure to recall the names of his colleagues whom he worked with at Mount Isa Mines Limited.
The Commission found in favour of the Appellant, accepting that he was a ‘worker’ within the meaning of s 11 of the Act. The Member opined that the Appellant was a truthful witness, and that whilst the Appellant was unable to recall the names of his work mates, his evidence was sufficiently detailed insofar as the commencement of the employment, the nature of the work performed, and the type of recreational activities he engaged in on his time off.
The Member ordered that the Regulator’s decision of 17 November 2021 be set aside, with the Appellant’s application being returned to the Regulator for further consideration on the basis that the Appellant is a ‘worker’ within the meaning of s 11 of the Act.
The decision in Del Bono v Workers’ Compensation Regulator illustrates that a dearth of documentary evidence pertaining to an individual’s employment is not necessarily fatal to establishing that they ought to be considered a ‘worker’ within the meaning of s 11 of the Act, provided the individual is considered credible.
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