In today’s modern working world, the line between when we are workers at work and when we aren’t can become blurred. This can cause issues in a range of circumstances, particularly in the case of workers compensation. If an injury is sustained whilst working outside the traditional arrangement, how do you know if you have an entitlement to claim WorkCover?
What “work” looks like today is different for different people. Some people work the traditional 9 to 5, Monday to Friday, at a regular place of employment. However, many people are choosing to work much more flexibly. Freelancers, independent contractors and flexible working arrangements are becoming more and more commonplace.
In addition, the “office” is more accessible. We don’t need to wait until we get to our usual place of work to log on. We check emails from home or on the train. We get a coffee from our favourite local café and pull out our laptops to finish off that report we’ve been working on. We attend conferences via Skype from the comfort of our living room. We have the technology and the flexibility to choose when and where we work.
How do I know if I can make a WorkCover claim for my injury?
To answer this, we need to ask two main questions:
1. Are you a “worker”?
and if so;
2. Were you “working” at the time of your injury?
This article will deal with the first of these questions.
Are you a worker?
In many cases, this is an easy question to answer. If you work for an employer pursuant to a standard contract of employment, it is likely that there will be little scope for dispute.
It can become tricky when you work as an independent contractor. A contractor can be deemed to be a worker under the worker’s compensation legislation, however, it is not always easy to distinguish between contractors who are workers and those who are aren’t.
If you’re unsure about your eligibility, you should seek some advice.
Scenario – Bob the construction worker
Bob is a construction worker and considers himself to be self-employed and largely works for a principal, ABC Construction. There is no contract of employment, just a mutual understanding that Bob will perform labour for ABC Construction as required from time to time and be paid an hourly rate for doing so. Bob issues an invoice for the hours worked each week to ABC Construction.
ABC Construction provide all the equipment and materials for Bob to complete his work and tell him week to week when and where he is required. Bob holds his own ABN, pays his own tax and super and has no leave entitlements.
One day whilst working at a site ABC Construction sent him to, he tripped over some building materials and fell, hurting his knee. He needed some time off work and ongoing physiotherapy and pain medication. Bob is a sole trader and therefore doesn’t have his own WorkCover insurance.
Can Bob make a WorkCover claim as a deemed worker for ABC Construction?
There are three important factors to look at when answering this question:
1. Did Bob perform at least 80% of the work for ABC Construction himself;
2. Did Bob earn at least 80% of his total gross income from ABC Construction; and
3. Was Bob carrying on an independent trade or business?
The first 2 questions are relatively easy to answer. The answer to question 3 will come down to whether a court views Bob’s business as independent to that of ABC Construction. To do this, how much control ABC Construction has over Bob will be an important factor.
Let’s assume Bob works only for ABC Construction
Expanding the above example, let’s say that Bob doesn’t work for anyone other than ABC Construction. He doesn’t wear his own uniform and is introduced to others on the site as a representative of ABC Construction.
If Bob can’t do a job allocated by ABC Construction, he is not able to delegate the work to someone else. Rather, ABC Construction will find an alternate solution themselves. Bob is required to give advanced notice if he is unavailable to work. Bob is required to report to a team leader on site who works for ABC Construction and who directs him on how to go about his work.
The additional information above leans more to the conclusion that Bob would not be carrying on an independent trade or business and he would likely be considered a deemed employee (or worker) of ABC Construction and therefore be entitled to bring a WorkCover claim for compensation for his knee injury.
Independent contractors should not automatically assume they have no WorkCover entitlements
If you are working as an independent contractor or freelancer and you sustain an injury while working, you shouldn’t automatically assume that you cannot bring a claim for WorkCover compensation. Each case will vary depending on the circumstances and it may be that you are a deemed worker of the business you were contracting to.
In our next workers compensation next article, we will discuss the second question posed above; Were you working at the time of your injury?
At Polaris, we are experts in WorkCover compensation claims. For advice or assistance, please get in touch with a Polaris WorkCover lawyer today. It doesn’t cost you anything to find out if you have a claim.