It is common knowledge that an employee of a business or company is protected pursuant to the workers’ compensation legislation should they suffer an injury in the course of their employment.

Every worker (i.e. employee or contractor) has the rights to pursue workers’ compensation

Many people assume if you are a contractor, and don’t hold your own workers’ compensation insurance policy, you are not entitled to any workers’ compensation benefits should injury occur during the course of your employment. This is not necessarily the case. Even though a worker might be titled a “contractor”, rather than an employee, and is contracted with a business or company to perform work, the Workplace Injury Management and Workers Compensation Act 1998 provides a contractor may be a deemed an “employee” if the contractor satisfies the below criteria.

The criterion as set out in Schedule 1of the Workplace Injury Management and Workers Compensation Act 1998 and various case law, including Humblestone v Northern Timber Mills Pty Ltd (1949) HCA 49 and Scerri v Cahill (1995) 14 NSWCCR 339, is examined on a case by case basis, and includes, but not limited to:

  • The value of the work being performed by the contractor is greater than $10, and is not work related to the contractor’s ordinary trade or business that is carried out in the contractor’s own name, and the contractor does not employ or subcontract the work out.
  • There is a continuing exclusive nature to the agreement between the contractor and business or company.
  • The hours of work are determined by the business or company, not the contractor.
  •  The rate or method of payment is set by the business or company, not the contractor.
  • The contractor’s uniform and/or equipment are provided by the business or company.
  • The contractor is insured under the business or company’s public liability insurance.
  • The contractor is not required to hold his or her own insurance policies (e.g. public liability and workers’ compensation).
  • The contractor does not usually perform or undertake the work done for the business or company.

Therefore, it is important that every worker, irrespective of their title (i.e. employee or contractor), consider their potential rights pursuant to the workers’ compensation legislation. Insurance companies will no doubt attempt to resist any such claim brought by workers that have been classified as contractors. As such, it is important you give yourself the best possible chance of successfully bringing a claim for workers compensation benefits.

If you are unsure whether you could be a deemed employee of a business or company and therefore entitled to compensation, contact Turner Freeman Lawyers today on 13 43 63 to discuss your rights.