Workers Compensation Act 1951

This Act is the Workers Compensation Act 1951.

Chapter 2 Interpretation generally

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act or in other legislation.

For example, the signpost definition ‘injury—see section 4 (Meaning of injury).’ means that injury is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

In this Act:

injury means a physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of a pre-existing injury.

In this section:

mental injury (including stress) does not include a mental injury (including stress) completely or mostly caused by reasonable action taken, or proposed to be taken, by or on behalf of an employer in relation to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a worker or the provision of an employment benefit to a worker.

In this Act:

employer includes—

an entity; and

the legal personal representative of a dead employer; and

if the services of the worker are temporarily lent or let on hire to someone else (the temporary employer) by the person (the original employer) with whom the worker has entered into a contract of service or apprenticeship—the original employer is, for this Act, taken to continue to be the employer of the worker while the worker is working for the temporary employer.

For this Act, an injured worker is totally incapacitated for work if—

there is no suitable paid employment reasonably available to the worker that the worker can do because of a functional impairment caused by the injury; or

the worker is taken, or declared, to be totally incapacitated under section 35 (When is a worker taken to be totally incapacitated?).

For this Act, an injured worker is partially incapacitated for work if, because of a functional impairment caused by the injury, the worker—

cannot do all the work the worker could do before the injury; and

is not totally incapacitated.

In this Act:

total wages means total wages worked out as prescribed by regulation.

The Legislation Act, section 47 (3) does not apply to a regulation under this section.

Chapter 3 Meaning of worker

Notes about ch 3

Note 1 Working out who is a worker

The following chart is a guide for working out if a person (X) is a worker for this Act.

Note 2 Payment for work

Most people who are workers under this chapter are employed or engaged under a contract with someone else. At common law, a contract cannot exist unless there is a valuable exchange between the people on both sides of the contract, by which—

• the employee (or contractor) provides labour to the employer (or principal); and

• the employer (or principal), in exchange, provides payment to the employee (or contractor), including non-monetary rewards (eg payment in kind).

The exceptions under this chapter are those who are taken to be workers under s 14 (Trainees), s 16A (Family day care educators), s 17 (Religious workers), s 18 (Commercial voluntary workers) and s 19 (Public interest voluntary workers). Trainees and religious workers may or may not be paid for their labour. Voluntary workers (under s 18 and s 19) are those that are paid only for expenses (if that).

Note 3 Subcontracting and labour hire (effect of s 13)

The Act applies in a special way to subcontracting arrangements, by which—

• a worker is engaged to work for a person who is the employer of the worker (under this chapter); and

• the employer has engaged the worker to fulfil a contract the employer has with someone else (in this note, a principal) to do work for the principal’s trade or business.

Under s 13, the principal is liable to pay compensation to the worker if the worker is injured. The principal may, however, recover the compensation paid from the employer.

These situations may be complicated by the involvement of labour hirers, who may in some circumstances be taken to be the employer of workers engaged to do work for a principal (see s 12). Here are 3 illustrations of different subcontracting arrangements:

Arrangement 1 No labour hirer

A bricklayer’s labourer (the worker) is employed by a bricklayer (the employer) to assist the bricklayer to fulfil a contract between the bricklayer and a builder (the principal).

The bricklayer is the labourer’s employer.

Arrangement 2 Labour hirer as employer

A cleaner (the worker) is engaged by a labour hirer (the employer) to fulfil a contract between the labour hirer and the owner of a retail store (the principal) for the cleaning of the store. The labour hirer is taken (under s 12) to be the employer of the cleaner, because the cleaner has no contractual relationship with the owner of the store.

The labour hirer is the cleaner’s employer.

Arrangement 3 Labour hirer as employment agent

A keyboard operator (the worker) is employed by an information technology consultant (the employer) to fulfil a contract between the consultant and a government agency (the principal). The consultant recruits the operator through a labour hirer acting as an employment agent.

The consultant is the operator’s employer.

Under all of these arrangements, the worker may claim compensation from either the employer or the principal (see s 13 (2) and (4)). If the principal pays compensation to the worker, the principal may claim repayment from the employer (see s 13 (3)). But in the 3rd arrangement (Labour hirer as employment agent), the worker may not claim compensation from the labour hirer, and the principal may not seek repayment of compensation from the labour hirer.

In this Act (subject to this chapter):

worker means an individual who—

works under a contract of service, whether the contract is express or implied, oral or written; or

works under a contract, or at piecework rates, for labour only or substantially for labour only; or

works for another person under a contract (whether or not a contract of service) unless—

the individual—

is paid to achieve a stated outcome; and

has to supply the plant and equipment or tools of trade needed to carry out the work; and

is, or would be, liable for the cost of rectifying any defect in the work carried out; or

a personal services business determination is in effect for the person carrying out the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60.

A reference in this Act to a worker after the date of an injury includes a reference to a former worker.

The Minister may determine categories of workers for the following provisions:

section 155 (7), definition of employer’s estimate, paragraphs (a) and (b) (Information for licensed insurers on application for issue or renewal of policies);

section 190 (1) (b) (Provision of information to inspectors).

A determination is a notifiable instrument.

In this Act (despite anything else in this chapter), worker does not include—

a public servant; or

an employee within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cwlth).

In this Act (despite anything else in this chapter), worker does not include an individual who would, apart from this section, be a worker employed by an employer, if the individual is a member of the employer’s family and lives in the employer’s home.

However, subsection (2) does not apply to an individual if the employer tells the licensed insurer who insures the employer against liability under this Act the name, nature of employment and estimated wages of the individual—

when the employment begins; and

whenever the insurance is renewed.

In this Act, worker does not include an individual (the casual employee) employed by someone (the principal) on a casual basis to perform work for the principal other than work that is for (or incidental to) the principal’s trade or business unless the casual employee is taken to be a worker under any of the following provisions:

subsection (2) (which deals with casual employment found through employment agencies);

section 11 (Regular contractors and casuals);

section 17 (Religious workers).

If the casual employee’s employment was found for the employee by a person who carries on the business of an employment agent, for this Act the casual employee is taken to be a worker employed by the employment agent.

Examples of casual employees who are not workers

1 A gardener irregularly employed by the occupier of residential premises to work in the garden of the premises (unless engaged through an employment agent—see example 4).

2 A babysitter irregularly employed by the parents of young children (unless engaged through an employment agent—see example 4).

Examples of casual employees who are workers

3 A gardener regularly employed by the owner of a business to work on the grounds of the premises where the employer’s business is carried on. The gardener is taken to be a worker employed to perform work incidental to the principal’s business (see s (1)).

4 A babysitter irregularly employed by the parents of young children who is engaged through an employment agent. The babysitter is taken to be a worker employed by the agent rather than the parents (see s (1) (a) and s (2)).

5 A babysitter regularly and systematically employed (for example, once a week over a 6 month period) by the parents of young children. The babysitter is taken to be a worker employed by the parents under s 11 (Regular contractors and casuals)—see s (1) (b).