Employers have a duty of care to maintain a safe workplace as far as is reasonably practicable.
When it comes to COVID, this means employers must take all reasonably practicable steps to prevent the spread of the virus in the workplace.
This includes having a COVID-19 plan that promotes social distancing, hygiene and cleaning; sets out how the business will respond to any possible transmission in the workplace; and follows government health orders. Many businesses are also providing rapid antigen tests for their employees at no cost to the employee.
“If a worker contracts COVID-19 in the workplace, the employer should ensure the worker reports this, takes time off work and self-isolates. If the worker is entitled to make a workers compensation claim, the business should also help the worker through this process. Counselling may also need to be provided,” says Annette O’Brien, Steadfast’s technical broking manager.
“It is compulsory for all employers in Australia to take out workers’ compensation insurance to protect employees if those workers suffer a work-related injury or illness.”
O’Brien notes workers are entitled to make a claim for workers compensation for medical expenses and weekly payments if they can show they contracted COVID-19 at work.
“They need to show their work was a substantial or significant contributing factor to contracting COVID-19. Note, however, workers compensation is governed by individual states and territories. Each state and territory has its own regulator that administers and gives advice on workers compensation.”
New South Wales and Western Australia have laws that include a presumption for workers in certain occupations meaning these workers do not have to show work was a substantial contributing factor to them contracting COVID-19.
In New South Wales, those occupations include retail, health, education, hospitality, transport and emergency services. In Western Australia this is limited to health professionals and ambulance officers. However, in November 2021, the New South Wales state government introduced a bill to remove this as an amendment to the Workers Compensation Act. It passed in the lower house and is now to be determined by the Legislative Council.
What about contractors?
It is compulsory for all employers in Australia to take out workers’ compensation insurance to protect employees if those workers suffer a work-related injury or illness.
“A person who is self-employed or engaged as a contractor is generally expected to take out their own insurance to cover themselves in the event of accident or injury. However, a contractor will need to have workers’ compensation insurance if they fit into the description of a worker,” says O’Brien.
The definition of a worker varies across states and territories. A person needs to be an employee or a deemed worker to be covered by workers’ compensation. They also need to take out workers compensation insurance if they hire someone to perform paid work for their business, as that person is deemed to be a worker.
Says O’Brien “Generally a person who works under a contract of service is considered to be a worker, even if they have an ABN or pay their own tax.”
A deemed worker is usually someone who works under a contract of service, rather than providing a service as a business. So, if a worker is considered to be a deemed worker, they are entitled to workers compensation benefits.
What about gig workers and freelancers?
This type of work is based on workers performing flexible, contractor or freelance jobs which often involve connecting with a company’s customers through an online platform or apps.
“Under current Australian labour laws, these types of workers are generally considered independent contractors, not employees,” she adds.
Workers compensation claims for gig workers such as food delivery couriers are uncertain.
“Many claims have been rejected as these workers could not prove a contract of service.
Whether a platform owner such as a ride sharing service is an employer under workers’ compensation laws will depend on the working arrangements and the rules under the relevant workers’ compensation scheme,” says O’Brien.
Workers compensation schemes in Australia will consider a range of factors to decide if a gig worker is employed by the platform and eligible for coverage by workers’ compensation insurance. This includes control over whether to take on work.
Workers compensation laws can be complex. Talk to your Steadfast broker today to make sure you are meeting all your duty-of-care obligations to all staff.