A growing share of the people who call us after a workplace injury are not sure whether they were employees. They were paid on an ABN, engaged through a labour-hire agency, described in a contract as an independent contractor, or working in the gig economy. The instinct is to assume that no employer means no WorkCover. The scheme is more generous than that, and the question turns on how the work was actually done, not on what the paperwork called it.

Key points

  • Whether you are a 'worker' depends on the substance of the arrangement, not the label or the ABN.
  • Labour-hire workers are covered by the agency's policy and may have a damages claim against the host as well.
  • A 'not a worker' decision is reviewable, and a negligence claim under PIPA may exist regardless.

Who is a "worker"

The Workers' Compensation and Rehabilitation Act defines a worker as a person who works under a contract and, in relation to the work, is an employee for the purpose of PAYG withholding under the tax legislation. It then adds categories of people who are treated as workers regardless, and excludes others. The tax test looks at the substance of the arrangement, using the same factors the ATO uses:

  • who controls how, when and where the work is done;
  • whether you can delegate or subcontract the work to someone else;
  • whether you are paid for your time or for a result;
  • who supplies the tools, equipment and vehicle;
  • who bears the commercial risk if the work is defective;
  • whether you are working in and for the other party's business, or running your own.

An ABN, an invoice, or a clause saying "independent contractor" does not settle it. A tradesperson who works for one builder, on the builder's hours, using the builder's materials, with no right to send someone else, is very likely a worker under the scheme whatever the invoice says.

Labour hire

Workers engaged through a labour-hire agency are workers of the agency, and the agency's WorkCover policy covers them. The host business where the work is done owes them a duty of care as well, which matters for a damages claim: a labour-hire worker injured by an unsafe system at the host site may have a damages claim against the host, the agency, or both.

Sole traders and genuine contractors

A person genuinely running their own business, taking on work from many clients, supplying their own equipment and bearing their own risk, is not a worker and is not covered by a client's WorkCover policy. Sole traders can take out their own personal accident or income protection insurance, and many hold TPD and income protection cover through their superannuation without knowing it.

Gig and platform work

Delivery and rideshare arrangements are assessed on the same substance test, and the answer varies with the platform and the arrangement. A rider injured by a driver at fault has a CTP claim regardless of employment status.

If WorkCover says you are not a worker

That is a reviewable decision. The Workers' Compensation Regulator looks at the arrangement afresh, and the Industrial Relations Commission after that. A "not a worker" rejection is not necessarily the end of the claim; what matters on review is the day-to-day reality of the work: rosters, directions, uniforms, exclusivity, who supplied what. Gather that material before applying for review, within the three-month window.

Whether or not you are a worker

If someone else's negligence caused the injury, a damages claim may lie against them under the Personal Injuries Proceedings Act, worker or not, with its own nine-month notice period. Do not let a "not a worker" letter end the enquiry.

Frequently asked questions

Can a contractor claim WorkCover in Queensland? Often, yes. The Act uses the tax test for who is an employee: control, delegation, payment for time or result, equipment and risk. Many people paid on an ABN are workers under the scheme.

Who covers a labour-hire worker injured at a host site? The labour-hire agency's WorkCover policy for statutory benefits. Both the agency and the host owe a duty of care, so a damages claim may lie against either.

What if WorkCover decides I am not a worker? Apply for review within three months with evidence of the real arrangement, and get advice on a public liability claim against whoever was negligent.

Sources

  • Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11 and Schedule 2 (who is a worker; persons who are and are not workers) — legislation.qld.gov.au
  • Australian Taxation Office, Employee or independent contractor — ato.gov.au
  • WorkSafe Queensland, Who is a worker — worksafe.qld.gov.au
  • Personal Injuries Proceedings Act 2002 (Qld), s 9 — legislation.qld.gov.au