There seems to be a common belief that all 'share
fisherman' in Queensland are excluded from the operation of the
WorkCover Qld workers' compensation scheme, however, whether a
crew member or fisherman is excluded from the scheme depends on the
basis which the person is employed and paid.
Queensland's workers' compensation scheme is governed by
the Workers' Compensation & Rehabilitation Act
2003 (WCRA) and is administered by WorkCover Qld. Employers
who employ "workers" in Queensland are required to
maintain insurance with WorkCover Qld to cover injuries sustained
by their workers in a workplace accident.
A failure by the employer to maintain a policy with WorkCover
Qld for a "worker" will result in the employer being
uninsured for any injury claim made by the worker and WorkCover Qld
will have the right to recover from the employer any personal
injury claim payments, costs, unpaid premiums and also a fine.
Claim payments (ie, damages to the injured worker) can be
significant particularly if a serious injury has been sustained
(which is not uncommon in the fishing industry).
Who is a "worker" under the WCRA is not neatly defined
although it is essentially any person who works under a
'contract of service'. A person can be a "worker"
under the WCRA even if they call themselves a
'sub-contractor' or operate under their own ABN.
Under the WCRA, a crew member of a fishing vessel is not a
"worker" only if:
the person's entitlement to remuneration is contingent upon
the working of the vessel producing gross earnings or profits;
the remuneration is wholly or mainly a share of the gross
earnings or profits.
A 'share fisherman' generally receives a percentage
share of the overall catch of the vessel (thereby excluding them
from the WCRA) however the term is also often used where a person
receives a percentage of their individual catch (thereby
potentially bringing them within the WCRA) so the precise payment
arrangement for each crew member is critical to determining whether
the person will be classified as a worker under the WCRA.
It is important that both requirements of the exclusion in the
WCRA are met otherwise the crew member will be considered a worker
for the purposes of the WCRA and the employer will need to maintain
workers' compensation insurance with WorkCover Qld for the crew
WorkCover Qld has published the following examples to highlight
those crew members whose working arrangements would result in them
being considered a "worker" under the WCRA:
A crew member who receives a wage (for example, a hourly or
daily rate) as their main remuneration.
A crew member who is paid based on the number of fish or
product they catch. This crew member is considered a worker as they
are receiving 'piecework' rates (for example, fisherman who
are paid a set amount per fish or per kilogram of fish regardless
of how much the owner of the boat receives for the whole
A crew member who is taken out on the vessel for a trial in
return for food (a 'tucker trip'). The benefit (food)
received for performing trial work would mean the crew member is
essentially remunerated for the trial work they are undertaking. If
you only need to maintain workers' compensation insurance for
such an arrangement, a minimum premium policy with WorkCover Qld
should at least be in place to cover these workers.
It is therefore possible that different insurance arrangements
might apply to different crew members working on a vessel. For
example, a skipper who is paid a share of the overall catch of the
vessel will not be a worker under the WCRA whereas a crew member
who is paid an hourly or daily rate or who is paid based on the
number of fish which they catch will be considered to be a worker
under the WCRA. In this situation, a policy of insurance will need
to be maintained with WorkCover Qld for the relevant crew members
but not for the skipper.
Those crew members who are excluded as workers under the WCRA
should have their own personal injury/accident insurance in place
to cover any injuries they might sustain at work (covering, for
example, medical expenses and loss of income) as they will not be
entitled to any benefits from WorkCover Qld for any work related
injuries. Also where the employer is the vessel owner, the
employer's legal liability to such persons (for example, for
negligence) will generally be covered under the vessel's
protection and indemnity insurance.
Employers and vessel owners should therefore obtain appropriate
advice in relation to the employment and insurance arrangements for
their crew. If they are in any doubt as to whether insurance with
WorkCover Qld is required, we recommend they seek advice from
WorkCover Qld about their particular employment arrangements and if
WorkCover Qld advise a policy with them is not required, they
should obtain written confirmation from them.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).