Worrying trends in workers' compensation claims. 

Employers are required to meet many financial and legislative obligations in order to run a successful business. Prosecution results published by WorkCover WA suggest that employers are increasingly attempting a range of tactics to avoid the responsibilities imposed on them by the Workers' Compensation and Injury Management Act 1981 ("the Act").      

Many employees who have been injured or become sick at work are not aware that employers are simply not able to avoid their workers' compensation liabilities and risk significant fines, legal proceedings and conviction if they do.

Workers' compensation - what is it?

If you sustain an injury at work or suffer a work related illness you may be entitled to make a claim for workers' compensation. To make a claim you must be defined as a worker, however, the Act relies on a wide definition of the term 'worker' and includes full-time, part-time, casual and seasonal workers on a wage or salary. Workers' compensation includes payments for financial loss, treatment expenses, medical and rehabilitation expenses and travel and lodging expenses.

How do employers try to avoid their workers' compensation obligations?

Over the years, Separovic Injury Lawyers have identified a range of tactics used by rogue employers to try to avoid honoring their workers' compensation obligations. Some of these methods include:

• requesting that an employee set up their own business and then provide services to the enterprise as a contractor;
• request that an employee sign an agreement or contract specifying that if they are injured or become sick at work then they are prohibited from making a workers' compensation claim;
• threatening an employee with cuts to earnings or hours, termination, redundancy or a change in conditions if they make a workers' compensation claim;
• providing an employee with false or misleading documentation about the enterprise, its contact details, its insurances or the workers' compensation process;
• generally pressuring an employee to not make a workers' compensation claim;
• pressuring an employee to take an inducement rather than making a claim;
• deducting monies from a workers' wages for the payment of a workers' compensation policy; and 
  
• by simply not taking out workers' compensation insurance on behalf of the employee.

What if I have signed a contract agreeing not to make a workers' compensation claim?

If you enter into either, a written or verbal contract, with your employer which causes you to not be deemed a worker and to be removed or excluded from workers' compensation cover it is likely that this agreement will be regarded as an arrangement by the employer to avoid its workers' compensation responsibilities. In these situations Section 174 AA of the Act provides protection to the employee and the employer will be found to be in avoidance and the contract deemed invalid, regardless of what the employers' original intention hoped to achieve.

Section 357 of the Fair Work Act 2009 (Cth) also provides protection to employees and prohibits employers from misrepresenting the nature of the employment contract under which an employee is employed.

What if my employer does not have workers' compensation insurance?

Pursuant to the Act every employer in Western Australia is required to have current and adequate workers' compensation insurance cover. In special circumstances an exemption to this requirement can be made but such exemptions require the sanction of the Minister for Commerce and Industrial Relations. On its enactment provisions in the Act called for the establishment of the Workers' Compensation and Injury Management General Account which is managed by WorkCover WA. The Act mandates that payment of workers' compensation is made from the Workers' Compensation and Injury Management General Account where:

• compensation is due to be paid to a worker but the employer is refused insurance coverage under the Act;
  
• the employer is not insured;
• the employer's insurer declines to indemnify the employer;
• the employer is made bankrupt or placed into liquidation; and
• the employer does not pay the compensation due within 30 days of the employee obtaining an award of compensation. 

What we do to help.

If you have been injured or become ill at work and believe your employer is trying to avoid its workers' compensation obligations you should seek urgent legal advice. In these situations, Separovic Injury Lawyers will organise to meet with you to learn about your workplace injury or illness and the nature of your employment. We will then provide you with clear and easy to understand advice about whether you are able to make a workers' compensation claim and assist you in preparing and lodging your claim.          

Delaying making a workers' compensation claim can seriously impact on the success of your claim. We encourage you to call us now for the legal advice and assistance you need to successfully negotiate this difficult period of your life.