WorkCover: who is a worker?
To be eligible for WorkCover an injured person must show that they were a “worker” within the meaning WorkCover legislation in Victoria.
If someone is held to not be a “worker” even though they appear to be working, they will not be entitled to workers compensation.
Full time, part time and casual employees are all workers under the legislation and are entitled to lodge WorkCover claim if they are injured.
There is certainly a perception in some parts of the community that casuals are not entitled to make a WorkCover claim, but that is not correct.
People on probation periods are also considered workers and are entitled to WorkCover.
You can’t “contract out” of worker status. What this means is that an employer can provide you with an employment contact that says you agree that you are not a worker and then avoid accepting your WorkCover claim. If you are actually a worker, a contract saying otherwise wont change that.
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Labour hire workers
People engaged and paid by labour hire firms or employment agencies are considered workers of the labour hire firm or agency, not the “host employer”.
They are entitled to WorkCover for any injury that occurs with the host employer, however the claim will be made against the employing company.
Volunteers are mostly not considered to be workers, though there are some exceptions.
For the most part, people volunteering with the SES or CFA will have some coverage if they are injured in the course of volunteering.
Other volunteers that are considered workers include volunteer school/student workers, and jurors.
Read more about volunteers and WorkCover.
Off the books workers
People that are employed “off the books” are considered workers and are entitled to WorkCover.
The employer may also find themselves with some difficulties in terms of not having paid WorkCover insurance premiums, payroll tax etc.
People employed for any period of time
People employed for any period of time are considered to be a worker and can claim, even if they are injured on the first day of work.
People working in a partnership, i.e. the partners, are not considered workers and are not entitled to WorkCover.
Any person they employ is however considered to be a worker.
Sometimes a student can be considered a worker.
Here are the circumstances where they are covered, as identified by the Victorian WorkCover Authority:
- students at a school on a work experience arrangement
- students enrolled in an accredited senior secondary course at a TAFE institute or a university with a TAFE Division or with a person or body registered by the Victorian Registration and Qualifications Authority who are engaged in work experience or a structured workplace learning arrangement
- students of a school aged over 15 years and undertaking an accredited course of study who undertakes a structured workplace learning arrangement for training as part of that course of study
- post-secondary students of a TAFE provider employed under a practical placement arrangement.
When working for someone as a contractor or consultant, the specifics of the arrangement need to be looked at.
Sometime in these situations even though someone is described as a contractor or consultant, they will still be considered a worker for the purposes of WorkCover.
The test set out by the Victorian WorkCover Authority looks at the:
- control test
- integration test
- results test
- risk test
There are many factors to consider here, but summarising as best as possible, the more control the engaging party has (the potential employer) over the contractor, whether the contractor is treated more like and appears to be an employee rather than an independent person, who bears the blame if something isn’t done right with the work and whether the contractor is engaged to get a certain “result”, for example if someone is engaged to advise on the construction of a particular wind farm with no ongoing work after completion, it points towards being a contractor rather than a worker.
Read more: Does WorkCover cover contractors?
In most cases, if a person appears to be an employee of someone else they are going to be considered to be a worker under the Accident Compensation Act.
This is particularly the case when looking at non-volunteering situations where there is paid work performed and there is an ongoing relationship between the business and the person performing the work.
Things do become more complicated when there may be a contractor status involved and the specifics of each case would need to be looked at.
Certain volunteers are considered to be workers particularly when they’re performing volunteering duties on behalf of the government, such as jury duty or volunteering with the SES or CFA.