*The contents in this blog relates to legislation in New South Wales.
New South Wales first began decriminalising sex work in 1979.[1] Sex work, including employment in brothels, massage parlours, escort agencies and other commercial sex services have been legal (although regulated) in NSW for quite some time.
While health outcomes for sex workers have improved over the years,[2] there are a number of health and safety risks involving sex workers, including mental illness, violence at work and sexually transmitted diseases.[3]
An injury covered by the workers compensation legislation includes a “personal injury arising out of or in the course of employment”, and includes a disease injury, which means:
” (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease..”.[4]
Sexually transmitted diseases (STD’s) fall within the definition of ‘injury’, and are compensable under workers compensation if the STD was contracted through work.
It is important for sex workers to be aware of their workplace rights, including their entitlement to workers compensation. Under section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), a ‘worker’ is defined as a
“person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)”.[5]
There is nothing in the workers compensation legislation that excludes sex workers from benefits. Sex workers are afforded the same rights as any other worker. Although, one issue facing sex workers in NSW is that sometimes their working arrangements are organised in a way that creates an appearance that the worker is in fact a contractor instead of an employee.
However, sex workers may be ‘deemed employees’ under NSW workers compensation legislation,[6] meaning they are deemed to be an employee of the owner of the premise where they work.[7]
A sex worker will be deemed an employee, instead of a ‘contractor’ if:
- the value of the work they perform exceeds $10
- the contractor (the person carrying out the sex work) does not employ workers or sub-let part of all of the contracted work, and
- the work is not incidental to a trade of business regularly carried out by the contractor in the contractor’s own name, or under a business or firm name.[8]
Therefore, whether a sex worker is a ‘deemed employee’ or a ‘contractor’ for the purposes of the workers compensation legislation depends upon the circumstances of each individual case. A sex worker may still be an employee even if the sex worker makes payments to the proprietor for room hire, or if the proprietor does not have control over the worker’s shifts or nature of services.[9] Therefore, proprietors of a commercial sex services premises must take out workers compensation insurance to cover potential injuries sustained by sex workers in the course of their employment.[10]
A sex worker that is deemed to be an employee will also still be covered if their contract of employment is illegal.
Section 24 of the Workers Compensation Act 1987 (NSW) states:
“If, in any proceedings for the recovery of compensation under this Act, it appears that the contract of service or training contract under which the injured person was engaged at the time when the injury happened was illegal, the matter may be dealt with as if the injured person had at that time been a worker under a valid contract of service or training contract.”[11]
If the premises where you work did not take out a policy of workers compensation insurance, you may still be able to make a claim against the uninsured workers compensation fund, iCare. The premises may also be penalised for failing to take out an insurance policy.[12]
If you were injured at work, contact Turner Freeman Lawyers on 13 43 63 for a confidential discussion about your claim.
[1] The Kirby Institute, The Sex Industry in New South Wales (Report to the NSW Ministry of Health, 2012) 9.
[2] ‘Sex workers’ The Kirby Institute (Web page) <https://kirby.unsw.edu.au/research/sex-workers>.
[3] The Kirby Institute, The Sex Industry in New South Wales (Report to the NSW Ministry of Health, 2012 12-13.
[4] Workers Compensation Act 1987 (NSW) s 4.
[5] Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 4.
[6] Ibid Sch 1, cl 2
[7] ‘Health and safety guidelines for sex services premises in NSW’ SafeWork NSW (Web Page) Ch 16 <https://www.safework.nsw.gov.au/resource-library/other-services/health-and-safety-guidelines-for-sex-services-premises-in-nsw?result_397396_result_page=2>.
[8] Workplace Injury Management and Workers Compensation Act 1998 (NSW) sch 1, cl 2.
[9] Health and safety guidelines for sex services premises in NSW’ SafeWork NSW (Web Page) Ch 16 <https://www.safework.nsw.gov.au/resource-library/other-services/health-and-safety-guidelines-for-sex-services-premises-in-nsw?result_397396_result_page=16>.
[10] ‘Health and safety guidelines for sex services premises in NSW’ SafeWork NSW (Web Page) Ch 2 <https://www.safework.nsw.gov.au/resource-library/other-services/health-and-safety-guidelines-for-sex-services-premises-in-nsw?result_397396_result_page=2>.
[11] Workers Compensation Act 1987 (NSW) s 24
[12]‘Health and safety guidelines for sex services premises in NSW’ SafeWork NSW (Web Page) Ch 2 <https://www.safework.nsw.gov.au/resource-library/other-services/health-and-safety-guidelines-for-sex-services-premises-in-nsw?result_397396_result_page=2>.