On 17 October 2013, the Queensland Parliament passed
amending legislation making significant changes to the
Workers' Compensation and Rehabilitation Act 2003
(WCRA). Of particular significance, the
amendments introduce, for the first time in Queensland, an injury
threshold for workers to be able to pursue common law (negligence)
claims against their employer.
Introduction of 5% threshold
A worker under the WCRA must now receive a "degree of
permanent impairment" (DPI) – formerly
known as "work related impairment" or "WRI"
– of more than 5% for an injury in order to pursue common law
damages against their employer. The worker's DPI for the
injury is assessed by a doctor appointed by the workers'
compensation insurer WorkCover Queensland or, if the employer is
self-insured, by the employer.
The threshold applies to all injuries occurring on or after 15
An injured worker will still be able to make a statutory (no
fault) claim under the WCRA irrespective of the threshold and be
covered for wage benefits and medical costs and also be entitled to
specified lump sum compensation for their injury.
Impact on non-employers and their insurers
The introduction of the 5% threshold is likely to substantially
reduce the current number of claims for damages brought by injured
workers against their employers, particularly where only minor
injuries are involved. This reduction in claims should in turn
result in fewer claims for contribution being made by employers
against non-employer defendants.
However, we anticipate the change is likely to increase the
number, and value, of direct claims being made by injured workers
against non-employer defendants – such as host employers,
occupiers, contractors and manufacturers (and public and product
liability insurers) – under the Personal Injuries
Proceedings Act (PIPA) because such claims
are not subject to any injury threshold. Injured workers who do not
meet the impairment threshold are therefore likely to increase
their focus on non-employer respondents to obtain damages.
Further, the non-employer respondent will not be able to obtain
contribution from the employer as a joint tortfeasor where the
injury threshold has not been met. Consequently the
non-employer will, if found liable, be responsible for the full
amount of the claim regardless of any negligence on behalf of the
employer (absent any contractual indemnity provided by the
Who is a "worker" under the WCRA
The latest amendments to the workers' compensation scheme
come on the back of changes made to the definition of
"worker" in the WCRA from 1 July 2013. The change
essentially aligns the definition of "worker" under the
WCRA with that used by the Australian Taxation Office (ATO), that
is, the worker works under a contract and, in relation to the work,
is an employee for the purpose of assessment for PAYG withholding
under the Taxation Administration Act 1953 (Cth). However,
Schedule 2 of the WCRA also specifically includes or excludes
certain persons as workers under the WCRA irrespective of whether
they satisfy the worker test.
Whether or not a person is called an employee or contractor is
not determinative of whether they would be a "worker"
under the WCRA. The ATO website contains useful guidelines and an
employee/contractor decision tool which can be used to consider
whether a person is an employee (and therefore a worker) or a
contractor. WorkCover Qld has stated that it will use the ATO
guidelines and decision tool to determine who should be covered for
workers' compensation and claims purposes, provided the person
is not specifically included or excluded as a worker under Schedule
Two of the WCRA. Therefore, employers should use the ATO decision
tool if they are unsure whether a person is a "worker"
for the purposes of the WCRA and a copy of the determination should
be kept as a record.
An example of a specific exclusion under Schedule 2 of the WCRA
relates to certain crew (including skippers) of fishing vessels.
The Schedule provides a member of the crew of a fishing vessel is
not a worker for the purposes of the WCRA if (a) the person's
entitlement to remuneration is contingent upon the working of the
ship producing gross earnings or profits and (b) the remuneration
is wholly or mainly a share of the gross earnings or profits. Such
crew members are commonly referred to as "share
fisherman" but it is important the specific requirements of
the exclusion are satisfied otherwise the crew member might be
considered to be a worker under the WCRA.
Claims for damages by injured workers who fall outside the
operation of the WCRA will not be subject to the injury threshold,
and such claims will continue to be governed by the PIPA and be
determined in accordance with the provisions of the Civil
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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