WorkCover and labour hire

WorkCover will likely provide benefits and compensation to a labour hire worker if that person suffers an injury, condition, disease or illness connected to employment with a host employer.

This page will explore how WorkCover and labour hire works.

Definitions

To be clear, on this page a labour hire company is a business that employs workers and who makes the arrangement for those workers to work with other employers.

These other employers are called host employers. These host employers engage the labour hire workers.

As a labour hire worker, your WorkCover rights are the same as a typical employee

For the most part, just because you are employed under a labour hire agreement does not mean that you have any less rights than a typical employee when it comes to WorkCover.

If you suffer an injury, illness, disease or condition related to your employment with a host employer, you may still be able to claim WorkCover compensation.

In terms of coverage, just like anyone else under the WorkCover system you may be entitled to claim medical and like expenses, weekly payments, an impairment benefit and potentially a common law claim.

In most situations, the labour hire company will be considered your employer and it will be their WorkCover insurance policy and insurance company that will be paying your entitlements.

Lodgement of an initial WorkCover claim as a labour hire worker

If you are employed under a labour hire agreement, when completing the WorkCover claim form (if you need a copy of the form, you can get that here) there are a few things that you should be aware of.

When it comes to listing where the injury happened obviously you should list the location of the host employer rather than the labour hire company’s office.

There will be a section on the form where you will need to indicate what area of the worksite were you working in when you were injured (see below). This will likely be the host employer location.

There is a section on the form for you to list the organisation paying your wages when you were injured. This will be the labour hire company, not the host employer (see below).

Lodging the claim form

In relation to lodging the claim, there are a few ways that you can go about this.

The claim form can be provided to the insurance company of the labour hire firm if you know who they are.

Alternatively or in addition to, you can provide a copy of the claim form to the labour hire company directly.

You can also provide a copy to the host employer, however you do not need to do so to have the claim processed.

If you provide a copy to the labour hire company directly, then we would recommend contacting them about a week after you’ve provided the claim form to them just to make sure that things are progressing as they should and that the claim form has been passed to the WorkCover insurer.

Once the claim form has been provided to the WorkCover insurer and the WorkCover insurer has started processing it, you should receive correspondence from the insurer confirming this.

Once you have received this confirmation you know your claim is being processed, but until you receive this you should continue to check and make sure that things are progressing as they should be.

Claiming weekly payments under a labour hire agreement

As you may be aware, in order to claim weekly payments you will need to provide certificates of capacity to your employer.

When you’re under a labour hire agreement, the certificates should be provided to the labour hire company and/or their WorkCover insurer.

If there is an ongoing expectation of work with the host employer, we would recommend that you provide a copy of your certificates to the host employer as well. It’s likely that they will request copies from the labour hire company in any event.

Claiming an Impairment lump sum claim

In order to claim an impairment lump sum, you (or your lawyer) must complete an impairment claim form.

On the form it will need to be noted where the injuries/conditions occurred. This will likely be the host employer location (see below).

In addition to this, the Worker’s employment details section of the form will need to be completed – but in this section the details of the labour hire company should be added, not the host employer (see below).

You’ll need to indicate on the form when you commenced with this employer, is this your current employer, what was your usual occupation with this employer and give full details about the duties you performed.

Reference to ‘this employer’ means the labour hire company, not the host employer. It would be appropriate however when listing the duties you performed, to provide information about the duties you performed with the host employer.

Claiming a Common law lump sum as a labour hire worker

When it comes to a common law claim, things can get a little bit more complex.

A common law claim may be made against either the labour hire company, the host employer or both.

In order to succeed in these claims, you’ll need to show that you suffered a serious injury and that it was the negligence of another party (or more than one) that caused or contributed to your injury.

You will need to show that they owed you a duty of care and that they breached that duty of care which lead to your injury.

A common law claim is initiated via the lodgement of a serious injury application.

This is not something that you should be doing yourself – you should have a lawyer representing you if you’ve reached this stage of your WorkCover journey.

So the following is for your reference only, rather than being instructional.

On the serious injury application form (called a Form A), there is a section for your employer details to be listed. Here, the details of the labour hire company should be listed.

There is another section on the form where each entity that you have a cause of action against can be listed.

So this may be, depending upon the nature of your injury, the labour hire company and the host employer.

In any event, both the labour hire company and the host employer should be provided with a copy of the application.

However, for the serious injury aspect of the claim, it is the labour hire firm and their lawyers (from a panel firm chosen by the Victorian WorkCover authority) that will be responsible for determining the serious injury application.

WorkCover and employment issues as a labour hire worker

52 weeks suitable duties under WorkCover

Under WorkCover, if you suffer an injury and can’t work to the same extent that you were prior to the injury, the employer is obliged to offer you suitable duties for a minimum of 52 weeks.

If you are under a labour hire agreement, the host employer needs to work with the labour hire employer to offer you suitable duties.

This can be difficult as you have another layer – that is, in one sense two employers.

The host employer can offer you modified duties but they don’t have to.

It’s obviously difficult for the labour hire company to offer you suitable duties if the host employer isn’t willing to do so.

If no suitable duties are offered you’re entitled to be paid weekly payments at your maximum rate.

Unfair dismissal and general protections applications

If you suffer an injury as a labour hire worker and your employment is terminated, you may be able to lodge an unfair dismissal application or a general protections application. Both of these are applications that are made via the Fair Work Commission.

The involvement of a labour hire company does tend to make these claims more difficult. However, the fact that you are employed by a labour hire company does not mean that you cannot make a claim.

If your employment has been terminated, we would encourage you to seek employment legal advice right away.

Should you wish to lodge one of the claims referred to immediately above, you have 21 days from the date the dismissal came into effect in which to do so.

Pursuing a claim outside of the 21 day period can be very difficult to do.

Superannuation

If you have an accepted WorkCover claim as a labour hire worker, if you’re on WorkCover payments you’ll be entitled to superannuation after the first year – just as a typical employee with a WorkCover claim would be entitled to.

Return to work plans

Being employed via a labour hire company means that your return to work plans may be more complex than usual.

However, the host employer must to a reasonable level cooperate with the labour hire employer in respect of action taken by the labour hire employer, to facilitate a return to work.

Conclusion

If you are a labour hire worker and you suffer an injury, illness, condition or disease related to your employment you may still be able to claim WorkCover benefits in Victoria.

You may be entitled to the payment of weekly payments, medical and like expenses and potentially two lump sum claims – an impairment benefit and common law claim.

There are some differences however when it comes to WorkCover as a labour hire worker. When completing the claim forms – both the claim form for the initial WorkCover claim and the impairment claim, you will need to list both the labour hire company and the host employer in the relevant sections.

When it comes to a common law claim, again both the labour hire company and host employer in most cases will need to be listed on the Serious Injury Application and a copy of the application will need to be provided to both the labour hire company and the host employer.

You also have employment rights as a labour hire worker – although you do not have the same level of protection as a permanent worker.

If you are a labour hire worker with an injury, we would encourage you to get WorkCover legal advice given the potential complexities involved.