Injuries and accidents in the workplace require mandatory
reporting and are closely monitored. An administrative oversight to
maintain workers compensation insurance is also a crime that has
recently become more easy to detect.
In Western Australia an employer who allows employees to work
for any amount of time while a current worker's compensation
policy is not in place can be prosecuted, under a strict liability
offence regime. If found guilty, the employer will be made to pay
the amount of the avoided premium plus a hefty fine. If a Company
is prosecuted the fine imposed by a Court can be up to $25,000 per
uninsured worker. Where a natural person is prosecuted the maximum
fine is $5,000 per affected worker and the person faces receiving a
criminal record which can have serious implications for their
travel, future employment opportunities (including volunteer
positions at sports clubs etc) and even things like eligibility for
IVF treatments. WorkCover WA investigates failures to maintain
adequate worker's compensation insurance. In recent times it
has become relatively easy for investigators to identify offending
employers by requiring insurance companies to notify them whenever
a worker's compensation policy is not renewed.
In 2015 there has been a significant increase in the number of
convictions of employers in W.A for failing to maintain
worker's compensation. Total penalties of between $3,513.71 and
$25,584.87 have been imposed already this year against 16
employers. Somewhat inexplicably the largest penalty in 2015 so far
was imposed on an employer who was prosecuted as a person rather
than a company. The Magistrates Courts' penalties appear to
vary markedly and lack consistency.
Tips for Employers:
Take care to both ensure and insure safety. If you are investigated
or prosecuted seek legal advice promptly. Just as in any criminal
prosecution you have a right to legal representation before
providing any information and will usually have a right to remain
silent. However cooperation will be favourably regarded in the
event that you are found guilty. But any co-operation should be
informed by expert legal advice, as there are many issues to be
considered which significantly impact on the outcome. With careful
legal advice and representation potentially large fines can be
minimised, and where possible a spent conviction granted.
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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