Increasingly, on seeking employment workers have been asked to provide a workers’ compensation claims history to their potential employer.  Workers’ compensation claim histories are basic listings of injury type and date of claim. Non-compensable injuries from sporting or motor vehicle accidents are not identified.

Using such limited information to determine suitability for employment is discriminatory and no longer acceptable under the Workers’ Compensation and Rehabilitation Act 2003.

Recent Act amendments are good news for workers as they remove the potential for any party to unfavorably treat a person in the event that they have had a workers’ compensation claim.

While an individual retains their right to obtain their personal information, if it is suspected on reasonable grounds that the individual’s request will be used in breach of the Act, such as being provided to a potential employer, then this request can be refused. 

You can access more details about the amendments by visiting
http://www.legislation.qld.gov.au/Bills/51PDF/2005/IRandOActsAmB05.pdf

Fact Sheets & Links:

QMT Workcover Information: Providing information on statutory and common law claims as well as recent publications.

Persons for whom Workers Compensation premium is payable: This fact sheet outlines the criteria WorkCover Queensland considers when determining who employers need to cover under their WorkCover policy.  WorkCover Queensland provides insurance coverage for employers in accordance with the Workers’ Compensation and Rehabilitation Act 2003.

Quick Guide for Injured Workers: This brochure provides a quick overview of WorkCover and the workers’ compensation process.

Industrial deafness : If you suffer from Industrial deafness (loss of hearing from employment due to exposure to excessive noise) you may have an entitlement to compensation for industrial deafness.

Workers’ compensation benefits: A worker will receive workers’ compensation benefits when WorkCover Queensland accepts their application for compensation. This fact sheet provides information about benefits including medical expenses, weekly compensation payments, and lump sum compensation.

If you're injured on the job…: link to Workers Compensation web site for workers.

Are You Covered?

Employers in the building and construction industry who have inadequate WorkCover insurance are breaking the law.

Past changes to the definition of worker have resulted in some confusion within the industry about what persons are required to be insured for workers’ compensation purposes. With that in mind, WorkCover provided an amnesty period from February 1_28 to enable employers unsure of their WorkCover status to seek advice from WorkCover to ensure they are adequately covered.

That amnesty is now over and time is up for employers. Henceforth, WorkCover will undertake extensive audits of building sites and heavy penalties will apply to all employers of workers without a WorkCover policy.

The following is a fact sheet outlining the criteria WorkCover considers when determining whether individuals are workers under the WorkCover Queensland Act 1996 (the Act).

On 1 July 2000, the definition of worker changed for workers’ compensation in Queensland. Employers now have to cover individuals who work for them under a contract of service _ regardless of the individual’s tax paying arrangements. Also some individuals who work under a contract for labour only or substantially labour only may be required to be covered by employers. These individuals are considered as workers. An employer is considered as any person who engages a worker.

This change in definition has had an impact on the building and construction industry and it is therefore important that employers have a close look at the individuals they engage _ in particular, those who were previously paid via the Prescribed Payments Tax System (PPS).

To determine an individual’s worker status, as per the Act, a "Results Test" is to be applied, from 1 July 2002. This "Results Test" replaces all previous tests used by WorkCover to determine who is considered a ‘worker’ for workers’ compensation purposes.

The inclusions under Schedule 2 Part 1 of the Act _ Persons Who Are Workers and the exclusions under Schedule 2 Part 2 of the Act _ Persons Who Are Not Workers (e.g. directors, trustees and partners) still apply.

Generally, directors, partners or trustees in a business that is contracting to carry out work for you will not be considered as workers under the Act. However, it is common that within the industry circumstances change from job to job and employers are warned not to try to avoid declaring individuals simply because they are directors, partners or trustees in a business.

If they are working for the employer as an individual and not under contract as the business, they will be classified as workers unless they satisfy the Results Test.

Results Test

The Results Test comprises three elements:

- The individual is paid to achieve a specified result or outcome; and

- The individual has to provide the tools, or plant and equipment necessary to do the work; and

- The individual is liable for rectifying the defects in their work or for resulting damages.

If all three elements of the Results Test are satisfied, then the individual would not be considered a ‘worker’ for workers’ compensation purposes. Otherwise the individual will be considered a worker.

 1. Achieving a specified result or outcome

To satisfy this test:

- an individual’s written contract would require them to complete a set task;

- payment would need to be for an agreed contract price, based on completing the specific task, rather than an hourly rate (though the manner of payment is not necessarily decisive).

Essentially the contract has to be to achieve a specific result. Further, generally payment would not be made until the work is completed, though progress payments could be payable at agreed stages or timeframes.

2. The individual has to provide the tools, or plant and equipment, necessary to do the work

To satisfy this test the individual would be required in a written contract, to provide all the tools, or plant and equipment necessary for the individual to carry out the work under the contract.

3. The individual is liable for rectifying the defects in their work or for resulting damages

To satisfy this test the individual, in a written contract, would be legally liable for the cost of rectification of any defects in their work and/or the cost of any damages that might result from execution of the contracted work.

Rectification would normally require the individual to be responsible for the supply of the labour necessary to rectify the faulty work. It doesn’t matter if the individual does not rectify the defective work themselves, as long as the individual pays for it or is required to rectify the defect in their own time. For example, the individual would be required to rectify the defect for no payment or have an amount deducted from retention monies.

Responsibility for the cost of damages that might result from the execution of the contracted work could be equated to where it is a term in the contract for the individual to hold public, professional or product liability insurance. For example, the individual would be held liable for any damage caused by the product produced or service delivered.

Evidence required

To satisfy all of the requirements of the Results Test WorkCover requires there to be:

- a written contract, work order or quote specifying the terms and conditions of the contract, addressing all parts of the Results Test, as understood by both parties; and

- a copy of the invoice/s with the details of payment.

For the transitional year (1 July 2002 to 30 June 2003), if there is no written contract, work order or quote it is sufficient to maintain:

- a copy of the invoice/s detailing the scope of work completed and details of payment; and

- a signed written statement from both parties, outlining the terms and conditions of the contract, as understood by both parties.

What if I might employ in the future?

Where a business does not currently engage a worker but may do so within the next year, it is advisable to take out a WorkCover policy. This policy will cover an employer for any workers engaged between 1 July and 30 June in the following year.

For more information

The information in this fact sheet is for general information purposes only.

Employers should not act on the basis of the information contained herein without considering and, if necessary, taking appropriate professional advice. WorkCover is happy to help employers determine the status of the individuals they engage.

The best advice this union can give employers who are in doubt is to contact WorkCover for clarification of their regulatory obligations. You can contact WorkCover on 1800 642 442.