WorkCoverv Queensland has recently released a 90 second animation Understanding who’s a worker to help employers understand what is deemed a worker according to the Workers’ Compensation and Rehabilitation Act 2003.
While there are many elements used to consider if someone is deemed a worker according to the Act, meaning you will need to cover them under your workers’ compensation insurance policy, WorkCover Queensland enumerates three points to consider:
- Is the person employed under a contract of service?
- Is the person employed for substantially labour only; and
- Does the person meet the results test.
If the answer is ‘no’ or the criteria is not met for the first two points, the results test is then applied.
WorkCover Queensland Customer Service Manager, John Kinnane explained some of the complex indicators drafted in the Act to help employers work out if someone they’ve hired should be covered under their policy.
“The first step, a contract of service…. generally represents the relationship between an employer and an employee; you’re paying wages for that person (PAYG),” said Mr Kinnane.
“For example, a worker comes to you, they have an injury, we get a claim. We first look at are they working under a contract of service, so a standard employer- employee relationship, which makes up a larger part of the workforce. If they’re not because they invoice as a sole trader, they’ve got an ABN and they’re being paid pursuant to that regime, so the first point hasn’t been met, we will then look at the next step: do they work for substantially labour only.”
This step includes identifying if a worker is engaged for labour only or substantially labour only.
“If you have a sub-contractor who comes on site and provides labour only, he’s going to be considered a worker and you will need to declare those wages. We determine this by looking at what the person is paid for, not how they are paid,” said Mr Kinnane.
If the payment is basically for the return of services provided such as labour, the person will be considered a worker.
“A sub-contractor invoices you, the invoice says Michael Jones, ABN billed for 45 hours work at $ 2,000, that’s a fair indicia the person is engaged for substantially labour only and you need to declare their wages.
“However, using the case of a plasterer, if they’re invoicing you for a set job and they’ve provided the plaster board, all of the plaster and other materials needed to complete the job, it would indicate the job isn’t for substantially labour only; it’s for the provision of plant, equipment and materials as well.
The person is not engaged for substantially labour only and is not a worker under this test if the overwhelming proportion of the remuneration is for the provision of substantial plant, equipment and materials.
“Then there’s the results test, which comes into play when a person is not working under a contract of service or for substantially labour only.”
Below are the three elements that must be met to exclude a person from being a worker:
- Is the person paid to achieve a specified result or outcome, and
- Do they have to supply the plant, equipment or tools of trade needed to perform the work; and
- Is, or are they liable for costs to rectify any defects in the work they perform.
“If you answer no to one or more of these questions, the person is likely to be a worker. If you answer yes to all three questions, then you will not need to cover them for workers’ compensation,” said Mr Kinnane.