Should your WorkCover claim fall under Victorian law or another State’s jurisdiction?

Tuesday 4 February 2020
Linda Hanley

All Australian workers are protected by worker’s compensation if they suffer from a workplace injury or disease.  Each government regulates their own scheme, meaning that there are different rules in place for each state.

What is the Victorian law?

In order to be entitled to WorkCover compensation in Victoria, your employment must be connected with Victoria.  To determine this, the following is taken into consideration:

  • Whether the worker usually works in Victoria;
  • Whether the worker is usually based in Victoria for employment; and/or
  • The employer’s principal place of business in Australia is located in Victoria.

The fact that the worker is outside of Victoria when an injury happens does not prevent him/her from claiming WorkCover compensation under Victorian law.

In this circumstance, independent advice will need to be obtained to determine which jurisdiction would be more beneficial for the injured worker to make their compensation claim.

Case study

In the recent case of Moir v I.C. Formwork Services Pty Ltd (2019) ACTSC 246, the injured worker and his legal team made a WorkCover claim under Australia Capital Territory (ACT) law, as opposed to New South Wales (NSW) law. 

In this case, the injured worker was employed as a formworker and employed by a company that provided framework services to the building industry.  The employer is based in the ACT. 

The worker first commenced working for his employer around 1999 in Sydney and later moved to work in the ACT.  In around 2012, the employer was contracted to perform an extensive job in Bawley Point, NSW.  Accordingly, the worker was offered the opportunity to move to Bawley Point for a period of time to earn some extra money.  The worker left his wife and three children in the ACT to move to NSW temporarily to perform the job.  The worker had every intention to return back to the ACT.

The worker commenced employment on the Bawley Point project in 2014, until 2015 when he sustained a back injury from lifting a heavy formwork shutter.  After a period of being off work, the worker subsequently returned to work in the ACT.

His claim of compensation was brought under ACT law as the scheme provides more generous assistance than NSW law.  His employer argued against this, however the Judge rejected the employers claim due to the following reasons:

  • The worker was employed for many years prior to his injury to work in the ACT.
  • The worker undertook his work in Bawley Point to meet his financial goals at the time and had all intent of returning to the ACT.
  • The worker’s future working arrangements were going to be in the ACT.

If you would like further advice regarding whether your claim ought to be considered under Victorian law or another State’s law, please give our free Adviceline a call on (03) 9321 9988 for further advice.

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