When a person thinks of a Workcover claim it is often in the
context of an employee being injured during the course of their
employment. But what if you're engaged as a sub-contractor and
you injure yourself at work?
To have an entitlement to a Workcover claim in South Australia a
worker must have suffered an injury as a result of his or her
employment. A 'worker' is defined as a person who carries
out work under a contract of service (whether as an employee or
not) and where a work relationship is formed in which one party is
recognised as the employer and the other party as the worker.
Sub-contractors are self-employed and therefore cannot be
considered a 'worker' under the Act. Having said that, the
type of relationship is not necessarily determined by the label
which the parties choose to put on it.
In most cases, despite being labelled as a
sub-contractor, you are more likely to be a 'worker'
there is detailed control and direction/supervision over the
manner in which the work is carried out;
you either work exclusively for the employer or are intended to
be tied to that employer (as opposed to someone who is free to
carry out work, particularly of the same kind, for others);
you are required to work regular, defined hours;
equipment, tools and material are provided by the
wages are paid periodically rather than per job;
there was little or no ability to bargain or negotiate the
terms of the contract;
you are told where and when the work is to be performed;
you are told what work is to be performed and how it is to be
carried out; and
your work is being supervised.
Whether or not you are actually a 'worker' and a
contract of service exists will depend on the facts of each case.
The situation can be confusing and what is relevant is the
intention of the parties regarding the nature of the relationship.
A party may sign a contract stating that he or she is not an
employee but this will be given little weight in the wash up if the
intention of the parties was to create a contract of
If you're a sub-contractor who has been injured at work and
not sure whether you are entitled to a Workcover claim you should
seek legal advice.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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