A Bill was introduced yesterday into the Queensland Parliament
to remove WorkCover Queensland's obligation to indemnify
employers for contractual indemnity assumed by employers. This
amendment will have the effect of legislatively reversing the
decision of Byrne v People Resourcing (Qld) Pty Ltd &
Anor  QSC 269 ('Byrne').
The Byrne decision required WorkCover Queensland to
indemnify an employer which had assumed liability pursuant to a
contract with another party. For example, if a labour hire employer
agreed to contractually indemnify a host employer, or an employer
agreed to indemnify a principal contractor, and assuming the
indemnity was effective to transfer the liability, Byrne
provided that liability would be sheeted home to WorkCover
Queensland as the relevant insurer. Although, in many respects, the
decision in Byrne was quite narrow and only applied in cases
As a matter of construction there was an effective contractual
The worker otherwise had a right to sue the employer, for
example, had not accepted a lump sum compensation and made their
Byrne did cause significant concern for WorkCover
Queensland, in circumstances where WorkCover faced financial
exposure to contractual liabilities that were assumed by certain
employers for their own commercial imperatives.
This amendment will restore certainty. The proposed amendment
extends the definition of damages in section 10 of the Act to
exclude an effective indemnity granted by the employer to another
person in which the employer assumes that other person's legal
Not only does this amendment restore the pre-Byrne
position, it goes further in providing that indemnity provisions
are void and not to be applied by the courts. This amendment is
proposed to simplify issues of appointment generally in work injury
claims. By providing that contractual indemnities are void and are
not to be applied or enforced by the courts, this means that issues
of apportionment between joint tortfeasors are determined by
reference to established principles pursuant to the Law Reform
Act 1995. Importantly, an employer is then not faced with a
potentially uninsured loss if an employer has assumed liability
pursuant to a contract with another party.
The application of the National Injury Insurance
Although the reversal of the Byrne decision will have
significant impact on certain employers, the main purpose of the
Bill introduced into Parliament is to ensure that workers who
suffer particularly serious personal injuries as a result of work
related events in Queensland, receive necessary and reasonable
treatment, care and support payments regardless of fault. That is,
this Bill provides for injured workers to access the National
Injury Insurance Scheme ('NIIS').
In 2011 the Productivity Commission recommended a National
Injury Insurance scheme ('NIIS') alongside the National
Disability Insurance Scheme ('NDIS')
Where certain seriously injured workers can establish that their
employer was at fault, they are able to elect to opt out of
treatment and pursue common law rights. Seriously injured workers
who cannot establish fault or choose not to opt out of treatment
will nonetheless receive treatment care and support through
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.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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).