Page 3355 - Week 11 - Tuesday, 21 October 2014
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works or is usually based. Decision-makers are, instead, defaulting straight to the third option: the employer’s principal place of business.
Much of the case law in cross-border workers compensation was developed around long-distance bus or truck drivers and the particular historical difficulties experienced by them when injured interstate. In the case of long-distance truck or bus drivers, the employer’s principal place of business was often the easiest or only way to determine a single state of connection for an injured worker.
However, the application of a legal precedent based on the situation of long-distance drivers to other workers has led to some perverse outcomes. Some courts and other decision-makers do not consider other information that may establish that a worker usually works or is usually based in a particular state if they ever work in more than one state. This has undermined the intention behind the use of the word “usually” in the legislation and does not take into account the other relevant circumstances of the worker’s employment. It results in unnecessary delays to the resolution of the worker’s claim and undermines employers who do the right thing and insure their ACT-based workers in the ACT.
Injured workers who work mainly in the ACT or who are generally based in the ACT but occasionally travel interstate and whose employers have, in good faith, insured them in the ACT have been faced with rejection of their claims. They have been told that they should claim in some other state in Australia based on the employer’s principal place of business even though neither they nor the work may have ever been based in that other state.
The current situation also undermines government efforts to ensure that businesses operating in the ACT hold workers compensation insurance and discourage sham contracting. By requiring decision-makers to consider other central elements of employment arrangements for cross-border workers, elements which have been taken into account in other forums in which the worker’s status is being determined, the bill before you also gives clearer direction to employers, insurers and others when they decide where a worker usually works or is usually based when taking out workers compensation insurance policies.
Because so many people cross into and out of the ACT for work, and the majority of these cross-border workers will have a close connection with New South Wales, consistency with the New South Wales approach was a key consideration in the development of these amendments.
In addition, the government worked closely with the Insurance Council of Australia, individual insurers and the Work Safety Council during the development of these amendments. All have been supportive and welcomed the greater certainty which will be provided by the updated approach.
In summary, these changes to the Workers Compensation Act 1951 will enable employers to readily determine the state in which to obtain insurance and thus eliminate the need for workers to obtain compensation coverage in more than one state or territory, provide certainty for workers about their workers compensation
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