Who is a worker?
A worker is someone who is employed under a contract of service or a contract for labour or substantially for labour only, regardless of whether this is express or implied. A 'contract of service' exists where there is an employer/worker relationship. In a contract of service, the worker is directly engaged by the employer in employment. Most employment contracts are made under a 'contract of service'.
A 'contract for service' circumstance is where an individual performs work for the principal and personally does part or all of the work. A person who is employed under a 'contract for service' and works on a regular and systematic basis can be deemed to be a worker.
Who is not a worker?
A worker is not an individual who is paid to achieve a stated outcome, has to supply all equipment of trade required to carry out the work and would be liable for rectifying any defect. A contract can be made either orally or in writing, and applies to full time, part time and casual workers.
Sub-contracting and workers
Contractors and sub-contractors could be a worker, an employer or even both.
There appears to be some uncertainty, particularly in the construction industry, regarding this situation. Many contractors in the construction industry are being told they are required to 'take out' workers' compensation insurance to cover themselves when in fact, depending on their circumstances, a contractor may be considered a worker of the business contracting them.
The Workers Compensation Act 1951 (the Act) requires all employers in the ACT to have a workers' compensation insurance policy in place to cover their workers in the event of a workplace related injury.
An employer includes:
- an entity
- the legal personal representative of a dead employer
- and if the services of the worker are temporarily lent or let on hire to someone else (the temporary employer) by the person (the original employer) with whom the worker has entered into a contract of service or apprenticeship, the original employer is for the Act, taken to continue to be the employer of the worker while the worker is working for the temporary employer.
For the purpose of workers compensation, the definition of a worker may also include regular contractors and casuals who work:
- under a contract on a regular and systematic basis
- who have a reasonable expectation of the engagement continuing on a regular and systematic basis.
Additionally, under ACT legislation if a contractor (the principal contractor) subcontracts any part of the work, they may be liable to pay compensation for a worker employed by the subcontractor. This can occur when the subcontractor does not have adequate workers' compensation insurance to cover its workers. If the principal pays compensation to a worker of a subcontractor, they would be entitled to seek reimbursement from the subcontractor if they were deemed to be a person who would have been liable to pay compensation to the worker if they had held a compulsory workers' compensation policy.
Obligations for workers
Injured workers must take all reasonable steps to return to the workplace as soon as possible, taking into consideration the nature of the injury, and participate and cooperate in the Personal Injury Plan. Failure to comply may result in weekly compensation payments being stopped.
The Act ensures that injured workers:
- are able to nominate their treating doctor to assist in coordinating their personal injury plan and return to work
- are consulted in the development of a personal injury plan established by the insurer in conjunction with the employer, and with the assistance of an approved rehabilitation provider and the nominated treating doctor.
To make a claim, you must:
- Report the injury or disease as soon as practicable to your employer
- Enter the injury into the register of injuries. A register of injuries must be kept by the employer at the workplace, which records details of every injury, illness or incident that occurs within the workplace regardless of whether there is a claim for compensation
- Provide an approved medical certificate, Certificate of Capacity, from a doctor stating your employment was a substantial contributing factor to the injury
- Request a claim form from your employer. You may obtain a claim form directly from your employer's insurer if not available from your employer
- Submit claim form with a Certificate of Capacity from your nominated treating doctor, stating your employment was a substantial contributing factor to the injury, to the employer or directly to the insurer
- Make your claim within three years of the injury occurring or of you becoming aware of the injury, and before you voluntarily leave the employer, unless the court allows
- Attend, if requested, a medical examination arranged by your employer's insurance company, the costs of which will be paid by the insurance company. An insurer may cease your payments if you fail to attend a medical examination arranged for you
- Participate in and co-operate in the development of a personal injury plan. If you do not comply with reasonable obligations imposed under the personal injury plan, weekly compensation may be stopped under the Act.
What is a work-related injury?
A work-related injury is a personal injury or disease arising out of or in the course of the worker's employment. You may be able to claim if you:
- have an accident at work
- contract a disease from work
- aggravate a previous injury
- receive an injury on a journey travelling to or from your employment or anywhere it is necessary for you to go for work, to obtain a medical certificate or to receive medical treatment or rehabilitation.
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