To claim worker’s compensation in South Australia a person must be a “worker” as defined in the Return to Work Act 2014. Self employed persons in some cases come within that definition.

Where a self employed person is a “worker” as defined, that person has the same entitlement to claim compensation as any other worker. Compensation includes weekly payments of income support, reimbursement and pre payment for medical expenses and lump sum compensation for economic and non economic loss.

Section 4 of the Return to Work Act defines “worker” as:

  1. a person by whom work is done under a contract of service(whether or not as an employee)
  2. a person who is a worker by virtue of Schedule 1;
  3. a self-employed worker,

The section 4(c) definition of a “self employed worker” is some who, by application to Return To Work SA, is extended the protection of the Return to Work Act. Those workers aside, the definition extends to volunteers who perform certain work that is of benefit to South Australia (Schedule 1), and to persons performing work under a contract of service. It is the latter which is the focus of this blog.

Am I performing work under a contract of service?

Many trades and the work performed by tradespersons are captured by the definition of “building work” under the Return to Work Act.

“Building work” is defined broadly, and captures:

  1. on-site construction, alteration, repair or improvement of a swimming pool or spa;
  2. paving;
  3. fencing;
  4. insulation work;
  5. painting a building;
  6. installing air-conditioning;
  7. installing solar panels;
  8. plumbing, gas fitting and electrical work.

The definition is extended further to capture work where:

  1. the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building; or
  2. the whole or part of the work of excavating or filling a site for work referred to in paragraph (a);

Where a worker meets one or more of the criteria above, then consideration is given to other factors to determine if the relationship is a contract of service. Those factors include whether the worker is performing work in the course of the other person’s trade or business, if the worker performs the work personally (or contracts or subcontracts the work), who pays for the worker’s materials, whether the worker employs others to carry out the work (or part thereof) and the value of the worker’s tools used in the employment. There is no one determinative criteria, and all of the factors are considered.

It also does not matter what term the parties use to describe the relationship. Even if the parties consider the employment is a subcontract that does not preclude one of the parties being a “worker” for the purposes of the Return to Work Act. Ultimately it is the substance of the relationship determined by the factors above that is important and not (alone) the terms used by the parties to describe the relationship.

Building work is only one of the exceptions which permit certain self employed workers to claim under the Return to Work Act. If you are a self employed person and want advice regarding your entitlement to claim then contact our team of workers compensation lawyers today.