Injuries on or after 1 July 2003

New Sections:

Definition of worker:

The Workers’ Compensation and Rehabilitation Act 2003 carries over and amends schedule 2, Part 1 of the WorkCover Queensland Act 1996, inserting a new provision specifying that any person who works for another person under a contract (regardless of whether the contract is a contract of service) is a worker unless the person can satisfy all three elements of the results test, or it can be shown that a personal services business determination is in effect for the person under the Income Tax Assessment Act 1997 (Commonwealth).

The three elements of the results test to be satisfied are that:

           Schedule 2, Part 1(2)(a):

• The person performing the work is paid to achieve a specific result or outcome.
• The person performing the work has to supply the plant and equipment tools of trade needed to perform the work.
• The person is, or would be, liable for the cost of rectifying any defect in the work performed.

A person who works for another person under a contract would ordinarily be a person who seeks to receive a reward mainly for his or her personal effort or skills.  However, for the purposes of the results test, it does not matter whether the contract is a contract of service, a contract for services, or any other type of contract.

For example, a contract which is substantially for supplying or selling goods, granting a right to use property, or providing the use of an asset may involve some degree of labour which is incidental or ancillary to the main purpose of the contract.  The provision of the labour would not be the substantial intent of the contract and section 1A would not apply because the contract does not substantially concern one person working for another person.  In determining the main purpose of the contract, it may be necessary to look past the contract to the true nature of the agreement between the two parties.

In order to prove that an individual is not a 'worker' all three elements of the results test must be met.

Schedule 2, Part 1(2)(b) provides that, despite the results test, a person will not be considered to be a worker if they have a personal services business determination under the Income Tax Assessment Act 1997 (Commonwealth), section 87-60.  Section 87-60 specifies the matters about which the Commissioner of Taxation must be satisfied in order to make a determination that a person is performing work and receiving income as a personal services business.

In the event of an application for compensation being lodged, all the information available at the time of the claim may be considered.  This is in keeping with the current common law as enunciated by the High Court of Australia in Stevens v. Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 and Hollis v. Vabu Pty Ltd (2001) HCA 44, that there is no single objective test for deciding who is an 'employee' or 'worker' and that all of the circumstances of a case must be considered, on an individual case by case basis.  Part 1 does not therefore seek to replace or codify the common law meaning of 'employee' or 'worker'.

Section 233 retains definitions of 'claimant', 'worker' and written final offer definitions as amended by the WorkCover Queensland Amendment Act 2001.

Applicability of the Limitations of Actions Act 1974 to access Damages under the Workers' Compensation and Rehabilitation Act 2003:

Section 236 confirms the decision of the Queensland Court of Appeal in Tanks v. WorkCover Queensland [2001] QCA 103, and provides that section 11 of the Limitations of Actions Act 1974 is applicable to an action for damages for injury sustained by a worker in "circumstances creating, independently of the Workers’ Compensation and Rehabilitation Act 2003, a legal liability in the worker’s employer to pay the damages for the injury is, and always has been, the same as would have been applicable to that action if the Workers’ Compensation and Rehabilitation Act 2003 had not been enacted".

General limitation to persons entitled to seek damages:

Section 237(1)(a) is a new provision, which states that a worker is only entitled to seek damages for an injury sustained by a worker if the worker:

• has received a notice of assessment from the insurer of the injury
• the worker has not received a notice if assessment for the injury but has received notice of the assessment for any injury resulting from the same event and for the assessed injury, the worker has a WRI of 20% or more
• under section 239 (Worker who is required to make election to seek damages), has elected to seek damages.

Recognition of determination of state in connection in another state:

Section 114(1) provides if a designated court makes a determination of the state with which a worker’s employment is connected for the purposes of a corresponding law, that state is to be recognised for the purposes of section 113 as the State with which the worker’s employment is connected.

Choice of law for damages claims:

Chapter 6 - Choice of law for damages, Sections 321-325.  These new provisions in the Act provide interpretation of Chapter 6 and the substantive law governing the claim.  Note, as provided on s321 (1), this chapter applies only to a claim for damages against a worker’s employer in relation to an injury that was caused by:

• the negligence or other tort (including breach of statutory duty) or the worker's employer
• a breach of contract by the worker's employer.

Who is an employer?

This clause incorporates changes made to schedule 2A of the WorkCover Queensland Act 1996 by the Workplace Health and Safety Amendment Act 2003, inserting as new part 2, (persons who are not workers), which specifies that a person is not an employer of a person who works for the person, (regardless of whether the contract is a contract of service), if the person performing the work can satisfy all three elements of the results test, or it can be shown that a personal services business determination is in effect for the person under the Income Tax Assessment Act 1997 (Commonwealth).