Going to work and being injured whilst at work is probably the last thing that runs through your mind when you leave to go to work. That’s why it’s essential to have a worker’s compensation policy even if you think you’re a contractor. Australia is one of the very few countries fortunate to have fundamental legislations and regulations in place to help and protects workers; contractors and even deemed workers. If you have had an injury and are finding the procedure complex and confusing, at Turner Freeman lawyers were here to help you and take on your problems so you don’t have to.
If you were injured at work, NSW legislation provides you entitlements to claim if your injury was work related and a substantial contribution factor. If you had an injury and thought you were a contractor, you just might classified as a deemed worker.
Under the Workplace Injury Management and Workers Compensation Act 1998 No 86, Schedule 1, provides an extensive list of individuals who can be categorized an a worker or contractor. There is often misinterpretation of whether you claim workers compensation if you are a contractor.
There are three categories of employment that can apply to any person injured at work.
- Worker – as defined by Workplace Injury Management and Workers Compensation Act 1998, Schedule 1, a worker is 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) exceptions apply.
- Contractor – If you have an ABN, it does not mean you are a contractor but may be a deemed worker.
- Deemed Worker – under the Workplace Injury Management and Workers Compensation Act 1998 Schedule 1, – Some are ‘deemed workers’ even though they have been hired as a contractor or sole trader, example if you are a contractor or sole trader for tax purposes and you do not sublet nor employ other employees, than you may be taken to be a worker for whom the service was provided to.
Before we assess a contractor vs deemed worker, icare sets out several factors that determine the form of employment as follows:
A contractor is likely to:
- engaged to carry out particular task using their own skill and judgment
- employ others, delegate or sub-let work to others
- paid on the basis of a quotation for a service
- supplies their own equipment, tools and materials
- conducts business or an independent business in their own name or under a business or firm name. Having an ABN does not indicate a person’s employment status.
A worker is likely to:
- be directed by the employer regarding work to be performed and the time and manner in which it is to be performed
- be required to y carry out the work
- be paid on a time basis
- have equipment, tools and materials supplied by the employer
- works exclusively for a single employer
- be affected by PAYG tax arrangements.
NSW Workers Compensation Commission makes a precedent case and finds reality TV contestant on contract for Chanel 7 Network to be a Deemed Worker.
A contestant on the reality TV show “House Rules” on Chanel 7 was paid $500 each week including allowance for filming and undergoing renovations.
During production, the contestant was isolated and an encouragement of bullying by co-competitor was aired as well as production crew. As a result the contestant sustained bullying, adjustment disorder, anxiety , depression and post traumatic stress causing significant psychological and psychiatric injuries.
Whether the contestant was an independent contractor as she had no skill in renovations, but rather was she providing a service to channel Seven by being on the show?
Despite the reality TV signing a contract with Chanel Seven that she was a participate and was not a form an employment that did not create an employer/employee relationship, Arbitrator Cameron Burge stated “ The respondent derived benefit from the Applicant giving her time and engaging in home renovations for the television show and without the contestants, the productions would not take place and that the relationship was an employee/ employer relationship”.
Simply providing a service does not necessarily make you a contractor, it is rather the service and the variables that could differentiate whether you can make a workers compensation claim or not. A person may have been hired as a contractor and be a contractor for tax purposes, but still be a worker for workers insurance purposes. The status for tax purposes has no direct relationship to that person’s status as a worker for workers insurance purposes. A person therefore may be able to claim workers compensations for injuries sustained whilst at work.