There has been a marked increase in WA in the number of criminal
prosecutions of employers without worker's compensation
insurance. Administrative oversight is more often than not the
reason – but that reason is no excuse. Employers face
receiving a criminal record and very large fines.
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, lapses or is
cancelled. 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.
If found guilty, the employer will be made to pay the amount of
the avoided premium plus a hefty fine of between $5,000 and $25,000
per worker who was uninsured. The legislation doesn't take
account of whether workers were employed for only a few hours per
week or full time. The amount of the fine is fixed per worker.
Even small businesses with only 10 workers will face fines of
between $50,000 - $250,000 for uninsured periods that may only
cover a matter of weeks.
Employers will also receive a criminal record which can impact
travel opportunities, future employment or even the willingness of
other businesses to contract with them.
Of the published convictions in 2015 so far the total penalty
imposed is averaging $12,000 per case with one small business in
Rockingham being ordered to pay over $30,000.
Tips for Employers:
Early legal advice if you are being investigated or have been
charged can have a marked effect on the outcome of your case.
HHG Legal Group has successfully represented a number of
employers in 2015, and through careful negotiation with the
prosecution and persuasive pleas in mitigation has ensured the
penalties received are amongst the very lowest on record. In
addition all of the employers we represented had the convictions
spent – which means they did not receive a criminal
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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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
This article examines common coverage issues and considerations for granting indemnity for criminal fines and penalties.
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