WorkCoverSA. Guide to cross-border workers compensation provisions

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1 WorkCoverSA Guide to cross-border workers compensation provisions January 2008

2 1722_ST, Printed January 2008 Design and produced by WorkCover SA ISBN:

3 Contents Introduction 3 1 How to determine a worker s state of connection 5 Supporting documentation 5 First test: state in which the worker usually works 6 Second test: state in which the worker is usually based 6 Third test: employer s principal place of business 7 Special situation: workers on ships 7 Fourth test: place of injury 7 Employer obligations 7 Diseases of gradual onset 8 2 Industry examples 9 Agriculture/pastoral 9 Building and construction 11 Education 12 Labour hire 12 Mining 13 Performers 15 Sales 16 Ships/boats 17 Transport 18 Attachment 1 Workers compensation agency contacts 20 Attachment 2 Nationally agreed arrangements for cross border coverage 22

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5 Introduction Purpose of guides The purpose of this guide is to assist employers, WorkCover SA s claims agent, Employers Mutual, and workers to understand the new cross-border/territorial provisions. The guide is divided into two main sections. The first section contains details of the state of connection tests, and the second contains examples of the tests operating across a range industries. Background In the past, employers sometimes found themselves being required to obtain workers compensation coverage for an individual worker in more than one state or territory. Following amendments to section 6 of the Workers Rehabilitation and Compensation Act 1986 (the Act), which adopt a national model for territorial or cross-border coverage, employers will only need to obtain workers compensation coverage for a particular worker in one state or territory. Summary of changes Under the new provisions, the state or territory in which workers compensation levies relating to a particular worker are payable is ascertained by determining the worker s state of connection. The state of connection of a worker is determined by a series of tests, details of which are contained on pages 5-8 of this guide. Similarly, the entitlements of an injured worker are also determined by the state of connection. All states and territories have introduced the same cross-border provisions, resulting in uniform national laws. This means that the same tests apply irrespective of where a worker is employed, injured or based, and irrespective of where the worker s employer is based.. Warning These new provisions do not mean that every employer will only require one policy of insurance in one state for all their workers. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 3

6 Introduction Disclaimer This publication is intended to be a user-friendly guide on effect of the recent changes to section 6 regarding cross-border or territorial coverage for stakeholders and the general public. WorkCover aims to make the guide as accurate and complete as it can, however as this is new untested legislation it accepts no responsibility for errors made in the guide. The publication is what the name suggests guidance material only, not legal advice and readers should seek their own legal advice if they need an opinion about their legal rights or obligations in consequence of these changes. Up-to-date hard copy versions of the Act can be purchased from the Service SA Bookshop at 101 Grenfell Street Adelaide, Ph , sa.gov.au. (Note that online versions of the official Act are subject to similar disclaimers as in this document). 4 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

7 1 How to determine a worker s state of connection The following series of tests is to be applied to determine a worker s state of connection. It is important to note that these tests apply to a particular contract or term of employment for a worker, not across different contracts. A worker s state of connection is: (a) the state in which the worker usually works in that employment (b) if no state or no one state is identified by (a), the state in which the worker is usually based for the purposes of that employment (c) if no state or no one state is identified by (a) or (b), the state in which the employer s principal place of business in Australia is located (d) if no state or no one state is identified by (a), (b) or (c), the state in which the worker was injured, provided that he/she is not entitled to compensation for the same injury under the laws of another country. There are special provisions for workers on ships (see page 7). Each of the steps in identifying a worker s state of connection is discussed in further detail below. They are the same as the tests used in other states and territories that have adopted the nationally agreed model for cross-border coverage (see Attachment 2). Supporting documentation To ensure that a worker s state of connection can be readily determined, contracts of employment or other forms of documentation should be clear and specific. Employers should clearly state where, and for how long, workers will be working in a particular state. Employers should keep accurate records of any arrangements to send workers temporarily to other states, these records could include copies of relevant contracts of employment, letters of offer, occupational licences, site agreements, travel/lodging records or other documentation that might confirm that the arrangement is temporary. It is important to note that employment documentation, while important, is not the sole determinant of a worker s state of connection. A worker s ultimate job locations may differ from what was intended and documented by worker and employer. In these cases the worker s job history is just as important as the documentation, and the latter does not always override the former. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 5

8 1. How to determine a worker s state of connection First test: state in which the worker usually works A worker usually works in the state where they spend the greatest proportion of their working time. Many workers are required to travel temporarily to other states in the course of their duties. However, if a worker spends the greatest proportion of their time working in one state, they are considered to usually work in that state. In deciding whether a worker usually works in a particular state, the worker s history and role with that employer up to a maximum of 12 months, and matters set out in the current contract of employment (where one exists), should be considered. The employer s and worker s intentions in relation to current and ongoing employment must also be considered. If it is intended that the worker will work in a particular state for the full term of their contract or term of employment, the worker usually works in that state for that period. Other discrete contracts of employment should not be taken into account. The new territorial provisions allow a worker to work temporarily for the same employer under the same term or contract or employment, outside their state of connection for up to six months, without the need to reconsider where the worker usually works. When six months has passed, the employer must review coverage for the worker. At this point, the employer may determine that: a) the arrangement remains temporary (the employer should keep copies of documentation supporting the temporary status of the arrangement) or b) the arrangement is now permanent, and the worker has a new state of connection (the employer must take out coverage for that worker in the new state of connection). Second test: state in which the worker is usually based There may be cases where a worker works comparable periods of time across a number of states. In these cases there is no one state in which the worker usually works, and one then moves to the second of the four tests: the worker s employment is connected to the state where they are usually based for the contract or term of employment. When deciding where a worker is usually based, the following factors should be considered: The work location specified in a worker s contract of employment. The location the worker will attend routinely during the term or contract of employment to receive directions or collect materials, equipment or instructions in relation to the work. The location the worker reports to in relation to the work. The location from which the worker s wages are paid. 6 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

9 1. How to determine a worker s state of connection Third test: employer s principal place of business There may be cases where a worker works comparable periods across a number of states, and there is no one state in which they are usually based. In these cases the worker s employment is connected to the state in which the employer s principal place of business in Australia is located. The employer s principal place of business is: the address registered on the Australian Business Register in connection with the employer s Australian Business Number (ABN) if the employer is not registered for an ABN, the state registered on the Australian Securities and Investments Commission s National Names Index, as being the jurisdiction in which the employer s business or trade is carried out, or if the employer is not registered for an ABN or on the National Names Index, the employer s business mailing address. Special situation: workers on ships Workers on ships should be treated in the same way as other workers, however, if no state or no one state can be identified by using the first three state of connection tests, a worker s employment is, while on a ship, connected with the state in which the ship is registered or, where the ship is registered in multiple states, the state in which the ship was most recently registered. Fourth test: place of injury If no state or no one state is identified by any of the first three tests or the ship test, the worker is connected to the state in which he/she was injured, provided that he/she is not entitled to compensation for the same injury under the laws of another country. Employer obligations Everyone who hires workers must take out workers compensation coverage for those workers in the correct state of connection. Authorities may take legal action against the employer and/or pursue penalty levies if it is determined that a worker does not have appropriate coverage in their state of connection. An employer may be relieved of such liability or penalty if a tribunal or court determines that the employer took out coverage for the worker in another state, believing in good faith that they were connected to that other state. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 7

10 1. How to determine a worker s state of connection Diseases of gradual onset The following procedure should be applied to determine the state of connection, and the compensation, of a worker who suffers an injury or disease gradually. 1. Apply the series of tests to determine the worker s state of connection. 2. Determine, using the provisions of that worker s state of connection, the employer to whom the injury can be attributed. 3. If the injury is actually attributed to a previous employer of the worker, reapply the territorial tests to determine the worker s state of connection at that time, then Seek compensation or contribution from the employer(s) or compensating authority in the state of connection at the time of previous employment. 8 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

11 2 Industry examples The following industry examples have been developed to show how the new territorial provisions can be applied to establish a worker s state of connection. Agriculture/pastoral Example 1 A grazier has a property on the border between South Australia (SA) and New South Wales (NSW). The homestead from which the grazier runs the business is on the SA side of the border. The shearing sheds and shearers accommodation are located some distance from the homestead on the NSW side of the border. The grazier engages shearers for a fixed contract on the property. The shearers only work in the shearing sheds for the period of the contract and at no time visit the homestead. To establish what state the workers employment is connected with we need to work through the territorial tests. In this example, the first test identifies the state in which the worker usually works in that employment and establishes that in this example the workers (the shearers) are engaged to work in the shearing sheds in NSW for the period of the contract. The first test therefore identifies the state of connection to be NSW. There is no need to consider the remaining tests. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 9

12 2. Industry examples Example 2 A grazier has a property on the border between SA and NSW. The homestead from which the grazier runs the business is on the SA side of the border. The grazier employs several farmhands who work across the property. The workers do not usually work in either SA or NSW but the workers report to the homestead at the start of each working day to receive instructions/directions and collect equipment. The first test does not identify a state of connection. The farmhands work is spread across the property, which spans SA and NSW (unless they are specifically engaged to usually work on only one area of the property which is in only one of the states). Therefore they usually work in both SA and NSW, not in only one of those states. The question then falls to the second test. The workers report every morning to the homestead in SA, to be assigned work and collect equipment. Based on this information, when we apply the second test we can establish that SA is the state in which the workers are usually based for the purposes of that employment, and therefore SA is the workers state of connection. **NB. If the workers did not have such a base in SA, we would need to consider the third test to decide the state of connection. This would be the state in which the grazier s principal place of business was located, which in this example would be SA again, as the business is based in the homestead which is located in SA. Example 3 A contract shearer employs several full time workers who work as a single team and report directly to the shearing sheds as required. The shearer has his business records and seeks new contracts from his principal place of business in Bordertown, SA. He secures contracts across two states that require equal days work. In this example, the first two tests do not identify a state of connection, as there is no state in which the worker usually works in that employment. Nor is the worker usually based in any one state, as the workers move to the various worksites rather than report to a base each morning. By applying the third test we can establish the employer s principal place of business is in Bordertown, SA, where he has his business records and secures contracts. Therefore the workers state of connection would be SA. 10 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

13 2. Industry examples Building and construction Example 1 A building company operates from a principal place of business in Perth, and has workers compensation coverage in WA. The company wins a four-month contract in Adelaide. The company sends a number of its key permanent WA-based personnel to Adelaide to oversee work on the four-month contract. The company also recruits additional staff specifically to work in Adelaide in respect of that contract. The company has made no commitment to employ these additional workers once the contract in Adelaide is completed. In this example, we must consider each group of employees separately as their contracts of employment are different. The first test establishes the company s existing permanent workers are usually based in WA and are only working in SA for the duration of the Adelaide contract. Their state of connection continues to be WA and the workers continue to be covered by WA workers compensation. By applying the first test to the additional staff who have been employed solely to work on the Adelaide contract, it establishes the workers usually work in SA in that employment and, as such, have a connection to SA. This group of workers is only required to have workers compensation coverage in SA, and the WA-based employer needs to take out workers compensation coverage in SA. Example 2 A construction company with its office in Melbourne undertakes building contract work in both Victoria and SA. On past contract experience, the work is evenly distributed between the two states. The workers work in both states from time to time depending on where the employer gains a contract. The workers do not have a permanent base, rather they report directly to the site on which they are working at that time. In this example, the first test does not apply as the workers work both in Victoria and SA, and cannot be said to work primarily in any one state. The second test does not apply, as the workers are not based in any one state and report directly to the site on which they are working at that time. To identify the workers state of connection we need to move to the third test. By applying the third test we can establish the employer s principal place of business as Victoria, and therefore the worker s state of connection is Victoria. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 11

14 2. Industry examples Education A teacher who is employed by the Tasmanian Education Department participates in an interstate teacher exchange program for 18 months, teaching at a Port Augusta public school during this time. Prior to going on the exchange, the teacher worked for the Tasmanian Education Department for several years. The Education Department continues to pay her wages during this period. At the end of the exchange the teacher is to return to her duties in Tasmania. To establish what state the worker usually works in, we must consider the worker s work history and the intention of the employer and the worker. In cases where a temporary arrangement exceeds six months, the situation must be reviewed to establish the intention of the employer and the worker regarding the temporary nature of the work in the other jurisdiction. This exchange scenario would be considered a temporary arrangement. There is sufficient evidence to establish the exchange period in Port Augusta was temporary, and that the teacher intended returning to Tasmania. The teacher s state of connection would continue to be Tasmania. As this case has been decided by the application of the first test, the second and third tests are not required. Labour hire A worker is registered with the Queensland office of a labour hire agency. The worker has had continuous employment through the labour hire agency with various employers in Queensland for two years. The worker is offered a fixed period of employment contract in WA by the SA office of the labour hire agency. The worker is paid their wages by the SA office for the period of the contract. The worker intends to return to Queensland at the end of the contract and resume work through the Queensland office as and when work comes available. The worker s contract of employment may have been arranged through the Queensland office of the labour hire agency and the SA office is paying the worker s wages. However, under the first test WA is the state where the worker will usually work for the period of the contract of employment with the SA office of the labour hire agency. As the first test decides the matter, there is no need to consider either the work base (second test) or the employer s principal place of business (third test). The SA office of the labour hire agency will need to take out cover in WA for this worker. 12 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

15 2. Industry examples Mining Example 1 A mining company has its principal place of business in Queensland. The company operates mines in Queensland, NSW and SA. Workers are employed to work full time in a SA mine but are flown home for rostered rest days on a regular basis. For the purposes of identifying the worker s state of connection, we must first consider the location where they actually work (ie, the first test). In this example, the miners usually work in the SA mine, therefore these workers state of connection would be SA. The fact that these employees are flown home on a regular basis is immaterial, as time off is not considered to be work. As the issue is decided by applying the first test, the second and third tests are not needed. Example 2 An engineer is engaged by a mining company with its principal place of business in Queensland. The company operates mines in Queensland, NSW and SA. The engineer has a home office in NSW where he prepares/finalises reports and receives regular and ongoing instructions from his employer to that office in relation to the site he is required to go to and the work he is to perform. The engineer is sent from mine to mine throughout Australia and periodically to Asia as required, for periods ranging from a few weeks to a several months. He cannot be regarded as usually working in any one state. In this example, the first test does not establish in what state the worker usually works in that employment. However, by applying the second test we can establish that the worker is usually based in NSW for the purposes of that employment, as it is here where instructions are received on work to be carried out. Therefore NSW is the worker s state of connection. The worker s employer would be required to take out workers compensation cover in NSW for this worker. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 13

16 2. Industry examples Example 3 A mining company has its principal place of business in SA. It operates mines throughout Australia. Full-time trouble-shooters are employed by the company and are flown to various sites where they remain until the issue is resolved. This can be anything from a few weeks to several months. Following a short break, the trouble-shooters are then directed and flown to the next location. These workers are not designated to work in any one state, nor do they usually report to any one location or base to collect equipment or materials. Under the first test, these workers do not usually work in any one state, nor do they report to any one location or base to collect equipment or materials, as would be required to satisfy the second test. As the first and second tests have not identified the trouble-shooters state of connection, we must apply the third test. SA would be the state of connection, as this is where the employer has its principal place of business. Example 4 A mining company has its principal place of business in WA. It operates mines in WA, NSW and SA. A quarry manager who has previously worked at the WA mine is sent to SA to take up a new position of mine manager. He works full-time at the SA mine. In this example, the first test establishes a state of connection. The intent of the new employment relationship is that the quarry manager now usually works in SA. He has taken up a new contract of employment in that state with the same employer. Previous contracts of employment are not relevant. The employer would need to obtain workers compensation coverage for the worker in SA. As this issue is decided by the first test, the second and third tests are not needed. 14 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

17 2. Industry examples Performers Example 1 A theatre company is registered in SA. It employs a core troupe of performers from all over the world and tours Australia with performances running for up to two months in each state. Additional performers and ancillary workers may be engaged at any time throughout the tour. An individual performer s state of connection in this example would depend on their contract of employment and the history of where they worked during that contract. Each performer s circumstances must be assessed on a case-by-case basis to establish their state of connection. By applying the first test it is clear that the core troupe of workers employed to tour throughout Australia would not usually work in any one state for this employment. The second test does not identify any one state where the workers would usually be based. As the first two tests have failed to identify these workers state of connection, we must apply the third test. This test identifies the company s principal place of business as SA, which would therefore be the workers state of connection. **Variation: Should a worker be employed under contract solely to perform work in a particular state, for example WA, the first test would establish that WA was the state in which the worker usually worked, and as such, WA would be their state of connection. Example 2 A theatre company is registered in SA and tours Australia with performances running for up to two months in each state. A performer resigns halfway through the tour in NSW. The employer engages another performer in NSW with the intention that this employee will complete the tour around the country. This intention is clearly specified in the worker s contract of employment; however, the new worker is injured after a couple of weeks whilst the show is still in NSW. In this example, the worker s contract provides evidence that the worker was going to be working in several states. When the first test is applied, it can be established that there is no one state in which the worker usually would have worked in that employment. The second test establishes that, due to the transient nature of this employment, there is no one state in which the worker is usually based. Any base the worker had was of a temporary nature. As the first two tests have not identified a state of connection, we must apply the third test. The employer s principal place of business is in SA; therefore the worker s state of connection is SA. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 15

18 2. Industry examples Example 3 A theatre company is registered in SA and tours Australia with performances running for up to two months in each state. A performer becomes ill halfway through the tour in NSW, but intends resuming work once the company moves to Victoria in six weeks time. The employer engages a replacement performer in NSW with the intention that this employee will only complete the NSW section of the tour. In this example, the new worker s contract will show that the worker is only engaged to work in NSW. The first test identifies NSW as the state in which the worker usually works in this employment, and as such, NSW is the worker s state of connection. As the issue is decided by the application of the first test, the second and third tests are not considered. Sales A sales representative is employed by a company in SA to cover NSW and the ACT sales territories. The company has only one office in Adelaide. The worker spends his time equally across NSW and the ACT, with occasional visits to head office in Adelaide. The worker is using accommodation in Canberra as his base for the purposes of carrying out his work, as the worker does not usually work in any one state. The first test does not identify a state of connection, as the worker does not usually work in that employment in any one state. The second test determines that the state in which the worker is usually based is the ACT. He uses accommodation in Canberra as his base for the purposes of carrying out his work. The worker s state of connection is therefore the ACT. As the issue is decided by the application of the second test, the third test is not needed. 16 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

19 2. Industry examples Workers on ships/boats Example 1: Fishing vessel A trawling business has its principal place of business in SA. The boat is moored, maintained and operated out of a Victorian port. Fishing is conducted equally in both SA and Victoria. The catch is always offloaded at the same port in Victoria. The ship is crewed by workers from both SA and Victoria who travel to Victoria to embark and disembark for each voyage. In this scenario, the first test does not identify a state in which the workers usually work in that employment, as the trawler conducts its fishing equally across SA and Victorian waters. As the trawler is based at and operates out of Victoria, and this is where the workers go to embark and disembark, the workers would be usually based in Victoria. By applying the second test, Victoria is the workers state of connection. The special test for ships and boats does not need to be applied, as we have identified a state of connection under the second test. Example 2: Charter vessel A company operates a charter vessel and has its principal place of business in Queensland. The vessel has mainly been registered in Queensland, however recently the owner had it reregistered in NSW. The vessel normally operates out of a port in Queensland. The charter vessel undertakes a six-month return voyage from Queensland calling at ports in the Northern Territory and WA. Whilst the vessel operates in Queensland waters, the state of connection would be Queensland by virtue of the first test, as the workers usually work in that employment in Queensland. While the vessel is on the voyage to the Northern Territory and WA, the state of connection would still be Queensland by virtue of the first test, as: (i) the voyage interstate was a return one to the home port in Queensland, and would therefore probably be temporary; and (ii) in any case, if no one state can be identified by the first test, the workers are usually based in the Queensland port for the purposes of their employment. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 17

20 2. Industry examples Example 3: Charter vessel A company operates a charter vessel and has its principal place of business in Queensland. The vessel is registered in Queensland. The vessel normally operates out of a port in Queensland. The charter vessel undertakes a six-month return voyage from Queensland calling at ports in the Northern Territory and SA. A new worker is hired to work on the vessel for the remainder of the voyage back to Queensland. When the voyage was completed, that worker would be flown back to SA and their contract of service would be terminated. The new employee does not usually work in any one state, so the first test does not yield an answer. When we apply the second test, it establishes that the new employee is not based in any one state, as the base moves across states. The third test identifies that the charter vessel has its principal place of business in Queensland. As such, Queensland is the replacement worker s state of connection. **Variation: Should the replacement worker have been engaged only for the SA leg of the voyage and not to continue through to Queensland, the first test would have established that the worker usually works in SA. Transport Example 1: Courier delivery A courier service has its office in SA and employs workers from both SA and NSW. Workers report daily to the Adelaide office to collect the courier vans and initial deliveries. Directions are received via radio throughout the day. The workers cross the border regularly and do not usually work in either SA or NSW. The first test does not identify a state in which the workers usually work in that employment, as the workers are working in both SA and NSW as part of their daily duties. The second test is the state in which the workers are usually based for the purposes of that employment. In this scenario, the workers report to the Adelaide office on a daily basis to collect their vans and pick up initial deliveries. As such, SA is their state of connection. 18 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

21 2. Industry examples Example 2: Long-distance bus company An interstate bus company has a head office in SA. The company has offices and depots in Queensland, NSW, SA and Victoria. Drivers spend equal amounts of time driving through the four states, but are usually connected to one of these depots. The drivers do not usually work in any one state. The first test fails to identify a state in which any driver usually works. In this scenario, each driver is usually based in the office or depot from which they operate. Therefore under the second test, the drivers are connected to the state in which their base depot is located. Their employer would need to take out workers compensation coverage in each state for those drivers. Example 3: Home-garaged rigs A driver works for a large company with a head office in NSW and takes his orders over his home phone in Queensland. Using a home-garaged rig, the driver picks up goods at a designated location, travels through Queensland, NSW and SA to the destination, picks up further goods, offloads at the new destination in NSW and returns home to Queensland. His wages are paid electronically each month into his bank account by the head office in NSW. This worker cannot be said to usually work in any one state as his duties take him equally across three states. In this scenario, the first test does not establish the state in which the worker usually works in that employment, as the driver works equally across three states. When the second test is applied, we can establish that the location where the driver keeps his rig would be his base for the purposes of his employment, therefore the state of connection would be Queensland. Should this driver be expected to attend a depot to collect a rig, then the location of such a depot would indicate the state of connection. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 19

22 A1 Workers compensation agency contacts Victorian WorkCover Authority Ground floor 222 Exhibition Street Melbourne VIC 3000 GPO Box 4306 Melbourne VIC 3001 Telephone: (03) (Switch) Facsimile: (03) (General) NT WorkSafe First floor, Darwin Plaza Building 41 Smith Street The Mall Darwin NT 0800 GPO Box 4821 Darwin NT 0801 Telephone: (08) Facsimile: (08) WorkCover SA 100 Waymouth Street Adelaide SA 5000 GPO Box 2668 Adelaide SA 5001 Telephone: (08) Facsimile: (08) WorkCover Queensland 280 Adelaide Street Brisbane Qld 4000 GPO Box 2459 Brisbane Qld 4001 Telephone: (General) Facsimile: WorkCover New South Wales ACT WorkCover Level 3, Block B, Callam Offices Easty Street Woden ACT 2606 PO Box 224 Civic Square ACT 2608 Telephone: (02) Facsimile: (02) WorkCover Tasmania 30 Gordons Hill Road Rosny Park TAS 7018 PO Box 56 Rosny Park TAS 7018 Switchboard: (03) Helpline: Facsimile: (03) Donnison Street Gosford NSW 2250 Locked Bag 2906 Lisarow NSW 2252 Telephone: (02) Facsimile: (02) workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

23 A1. Workers compensation agency contacts WorkCover Western Australia 2 Bedbrook Place Shenton Park WA 6008 Telephone: (08) Facsimile: (08) workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 21

24 A2 Nationally agreed arrangements for cross-border coverage To eliminate the need for employers to obtain workers compensation coverage for a worker or deemed worker in more than one state and enable employers to readily determine the state in which to obtain that insurance To ensure that workers and deemed workers temporarily working in another state only have access to the workers compensation entitlements available in their home jurisdiction (including arrangements applying in relation to common law) To provide certainty for workers about their workers compensation entitlements To eliminate forum shopping; and To ensure that each worker is connected to one state jurisdiction or another These principles are to be achieved ensuring that: (a) a worker is only entitled to the benefits applying in the jurisdiction determined under the applicable/relevant state statutory scheme (the home jurisdiction). This includes any benefits available under common law. At any point in time therefore, a worker will be linked to a single state/territory only and an injury occurring in a state will not necessarily be covered by the workers compensation scheme of that state. (b) a worker s employment would be connected with: i) the state in which the worker usually works in their employment ii) if no state or no one state is identified by paragraph (i), the state in which the worker is usually based for the purposes of that employment, or iii) if no state or no one state is identified by paragraphs (i) or (ii), the state in which the employer s principal place of business in Australia is located If no state is identified by these tests, a worker s employment is then connected with a state if the worker is in that state when their injury occurred and the worker is not entitled to compensation for the same matter under the laws of a place outside Australia. (c) it is not intended that there be any fallback to any other jurisdiction (except in the circumstances outlined in (h) below) (d) individual jurisdictions will determine the extent to which employment overseas would be covered by their legislation (e) the determination of the home jurisdiction will not be affected by the worker undertaking a temporary period of work for the same employer for a period up to and including six months in another state/territory (f) the benefits of the home jurisdiction will apply to a worker temporarily working in another state or territory for the period of work up to and including six months (g) when six months has expired, the intention of the employer and the worker as to the temporary nature of the work in the other jurisdiction must be reviewed 22 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

25 A2. Nationally agreed arrangements for cross border coverage (h) as far as possible, workers on ships would be treated the same as other workers. Some modifications will be required to address specific requirements for such workers eg, some seafarers may come within the first connection test if they usually work within one state/territory. If it is necessary to move to the second test, ie, where they are based, and they are based on a ship, the ship would be linked to one state/territory. All states/territories would have the same definitions of ship and home state of a ship. (i) in relation to common law access: i) a claim in tort in respect of a work related personal injury suffered by a worker is to be determined in accordance with the substantive law of the state with which the worker s employment is connected at the time of the injury ii) the relevant rules would apply to actions taken against an employer or a person for whom the employer may be vicariously liable iii) courts would apply the substantive law of the home jurisdiction iv) substantive law would be defined and would include any procedural provisions applying under the workerscompensation legislation and any other relevant legislation of the home jurisdiction. workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS 23

26 Notes 24 workcover SA GUIDE TO CROSS-BORDER WORKERS COMPENSATION PROVISIONS

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28 WorkCover 100 Waymouth Street, Adelaide South Australia 5000 General enquiries: Fax: (08) TTY calls: (08) for people who are deaf or have hearing/speech impairments. If you would like this information in a language other than English, please call (08) and ask for an interpreter to call WorkCover on This is available at no cost to you. WorkCover is a statutory authority that manages the Scheme established under State legislation and funded by employers to rehabilitate and compensate South Australians injured at work. WorkCover Corporation of South Australia, 2008 All rights reserved Printed January 2008

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