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Are contractors entitled to claim WorkCover compensation?

    Injured worker holding his back in pain
    23 April 2020

    In what situations may an injured worker or their dependents be entitled to WorkCover Compensation?


    A worker may be entitled to WorkCover compensation if she or he has:


    •    suffered an injury arising out of or in the course of employment; 
    •    suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre‑existing injury or disease and employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration of their pre‑existing injury or disease;
    •    suffered a heart attack or stroke that arose in the course of, or that was caused by, a disease, and employment was a significant contributing factor to the injury or to the disease; or
    •    contracted a disease due to the nature of employment (including past employments) and the nature of employment (whether current or a past employment) significantly increased the risk of the worker contracting the disease.  This is irrespective of whether employment actually caused the disease;
    •    been diagnosed with one of the prescribed proclaimed disease. This is irrespective of whether past or current work contributed to the disease;
    •    Is a career firefighter and has been diagnosed with one of the 12 specified cancers and has been employed or served for the respective qualifying period unless there is evidence that the relevant cancer is not due to the nature of the worker's service as a firefighter.

    The dependents of a worker may also be entitled to specialised benefits where the worker suffers an injury arising out of or in the course of employment which results in or materially contributes to the death of that worker.


    How is a worker defined in the WorkCover legislation?


    A worker is defined in the WorkCover legislation as an individual:


    a) who:
    o    performs work for an employer or
    o    agrees with an employer to perform work 
    at the employer's direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise or
    b) who is deemed to be a worker under the WorkCover Legislation

     

    Is a contractor a worker?


    A contractor is a person who is deemed to be working under a contract of service. These individuals may operate as sole traders or through companies, partnerships or trusts. 


    Depending on the circumstances some contactors may be:


    •    a “worker” under the WorkCover legislation; or
    •    deemed to be a “worker” under the WorkCover legislation.

    A contractor carrying on an independent business while providing services to the principal would generally not be considered a “worker” under the WorkCover legislation. 


    When can a contractor be considered as a worker under the WorkCover legislation?


    In some circumstances an individual contractor working under a contract of service may be considered a “worker” under WorkCover legislation, and therefore be entitled to claim WorkCover compensation. 


    In considering whether a contractor is a “worker” for the purpose of the WorkCover legislation, the Court may apply several tests which include the:


    •    control test;
    •    integration test;
    •    results tests; and
    •    risk test. 

    These tests involve consideration of the following factors:


    1.    Whether the individual performs work under the direction and control of another including:
    a.     The location/s of where to work; 
    b.    The tasks to be completed; and 
    c.    The times to complete the tasks. 
    2.    Whether the individual can subcontract or delegate the contracted work, or otherwise pay for someone else to undertake the work; 
    3.    Whether the individual supplies most or all of their equipment and tools to complete the work, or whether the business who engaged the individual supplies these items to the individual; 
    4.    Whether the individual is considered to be operating independently, or is considered to be part of the business that engaged the individual; 
    5.    Whether the individual is presented to the public as part of the business that engaged the individual, e.g. by wearing the uniform of the business and/or driving a vehicle with the logo of the business;
    6.    Whether the individual has an ongoing role with the business or was hired to produce a specific result or perform a specific task;
    7.    How the individual is paid – e.g. paid based on completion of a specific task or production of a result or paid regularly irrespective of the task/s completed or results achieved; and 
    8.    Whether the individual has an ability to make a profit or loss from the performance of their duties. 

     

    Can contactors be deemed to be workers under the WorkCover legislation?


    Incorporated contractors and contractors as natural persons in certain circumstances can be deemed to be  workers under the WorkCover legislation, and therefore claim WorkCover compensation if they meet one of the factors mentioned above.


    To determine if a contractor is a worker under the WorkCover legislation, the contractual relationship between the contractor and the business that hired them is assessed under the general contractor provisions. 


    An individual is deemed to be a worker of the hirer if all the following criteria are met:


    •    The provision of materials or equipment is not the principal object of the arrangement;
    •    At least 80% of the work is performed by the same individual; and 
    •    At least 80% of the contractor’s overall services income in the relevant period is earned from the hirer. 

    WorkCover legislation states that the relevant period is either:


    •    The financial year in which those services are or are to be provided; 
    •    If those services are or are to be provided in two consecutive financial years: 
    a.    the 12 month period beginning on the date on which those services are first provided pursuant to the contractual arrangement; or
    b.    the 12-month period ending on the date on which those services cease or are to cease, to be provided.

    An individual may be deemed to be a worker of a hirer under the above-mentioned general contractor provisions and also be considered a worker for their own company.

     

    I am an injured contactor and am still unsure if I would be eligible for WorkCover Compensation


    We recommend that you speak to one of our dedicated WorkCover solicitors at Zaparas Lawyers who can advise and assist you with your claim. 


    I am not eligible for WorkCover compensation, am I eligible for other entitlements?


    You may be entitled to other benefits regardless of whether or not you qualify for WorkCover compensation.  These entitlements may include:


    •    Total and permanent disablement benefit under your Superannuation Scheme;
    •    Income protection; 
    •    Critical illness Insurance or Trauma; and
    •    Incolink benefits (subject to being a member of an Incolink policy).


    Whether you qualify for any of the above benefits will depend upon the policy or policies you may hold and the specific requirements that need to be satisfied.


    We recommend that you speak to one of our dedicated Superannuation solicitors at Zaparas Lawyers who can advise and assist you with making a claim.

     

    Trust our family to care for you

    Here at Zaparas Lawyers, what’s important to you, is important to us. Therefore if you are a contractor who is experiencing difficulties, or would like to know more about your entitlements under WorkCover, contact us today for an obligation free appointment.