Page 3354 - Week 11 - Tuesday, 21 October 2014
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be their state of connection but the relevant employer does not have an ACT workers compensation insurance policy. Claims made on the default insurance fund are paid for by a levy on all ACT businesses.
By clarifying whether an employer should be maintaining a workers compensation policy for cross-border workers, these amendments should reduce the overall number of uninsured employers and workers and thereby reduce the negative impact on other ACT employers. It is likely to reduce the number of matters that become subject to dispute as well.
The ACT, along with all other jurisdictions, has worked over many years, through the Heads of Workers Compensation Authorities, to develop a national approach to define the overall method to be used when determining a worker’s state or territory of connection. A national approach was originally agreed in 2003 and introduced into legislation across Australia. Harmonised guidance material was developed in 2010 to improve the application of the national approach.
The ACT adopted this national harmonised cross-border guidance material as the Workers Compensation (Cross-border Workers) Approved Protocol 2012. However, concerns were raised by key territory stakeholders that the protocol did not provide the certainty required for decision making on claims by injured workers. Some elements of the nationally agreed state of connection rules have been interpreted differently by insurers, regulators and courts in New South Wales and the ACT. More certainty will be provided by incorporating these elements into the legislation.
The legislation currently imposes three main tests, to be considered sequentially, when determining a cross-border worker’s state of connection. They are:
1. where a worker usually works
2. where a worker is usually based, or
3. the location of the employer’s principal place of business in Australia.
The amendments made by this bill will strengthen the existing provisions by providing examples of where a worker usually works and expanding the provisions used to determine where a worker is usually based. The amendment will now specify that, in deciding whether a worker is usually based in a territory or state, regard must be had to matters including if the employer provides a place from which the worker is expected to operate; if a place is stated in the worker’s contract of employment with the employer; the place from which the worker routinely receives day-to-day instructions from the employer; the place the worker attends to collect material for the purposes of their employment; and the place the worker reports for administrative, human resource and other issues related to the worker’s employment.
By requiring decision-makers to consider the broader context of a cross-border worker’s employment, the amendments will remedy a situation that has developed where, in finding out that a worker works in more than one state or territory, decision-makers are concluding that there is no state or territory in which the worker usually
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