Your guide to Workers Compensation Laws

What is workers compensation?

Workers’ compensation is a form of insurance payment paid to workers if they suffer an injury or illness or disease because of work or in connection to work. The purpose of workers compensation laws is to provide a safety net so injured workers can get access to medical treatment,  weekly payments and in some instances lump sum claims .

All the states and territories have their own statutory worker's compensation scheme. Australian Federal Government employees and employees of organisations who self-insure are governed by the Comcare workers compensation scheme.

In Victoria, workers compensation is called ‘WorkCover’. It is regulated by WorkSafe Victoria and governed by several pieces of state legislation.

 

What are my rights on workers compensation?

Workers have a number of rights under Victoria’s workers' compensation scheme, including the right to:

  • Lodge a WorkCover claim if you sustain workplace injuries, illness or diseases as a result of your work; 
  • Access weekly payments until you can return to pre-injury hours at work;
  • Be compensated for reasonable costs of approved medical and like expenses for the work injury; 
  • In some instances you may have access to a lump sum payment where your work-related injury or illness has left you with a permanent impairment; 
  • Have financial compensation paid to your dependents in the event that you die as a result of a work-related injury or illness; and
  • Sue your employer for damages where your work-related injury or illness is ‘serious’ and occurred due to negligent circumstances.

WorkCover is a ‘no fault’ scheme, so you may be entitled to any of the above regardless of who caused the injury. The injury does not need to be serious to make a WorkCover claim, although the severity of the injury may determine your entitlement to compensation. By contrast, a common law claim for damages requires the injured workers to show that they have suffered a ‘serious injury’ under the law and that the injury occurred due to negligence of the employer. 

It is important to note that you are not entitled to all elements of the compensation listed above in every circumstance. There are several requirements applied by WorkSafe when determining your rights to compensation and the amount.

 

What does workers compensation not cover?

Workers’ compensation in Victoria is not exhaustive and does not cover some workplace injuries and circumstances.

WorkCover generally does not provide compensation for workplace injuries or illnesses that did not occur at work or are not related to your work in any way. If you were injured in a motor vehicle accident, you may be entitled to compensation by lodging a TAC claim under the Transport Accident Commission scheme. If you were injured in a different circumstance, you still may be able to access compensation such as through a public liability claim.

 

Does an employer have to carry workers compensation?

It is compulsory for almost all employers in Victoria to register for WorkCover insurance to ensure all workers are protected by the benefits of workers compensation if they sustain workplace injuries or fall ill at work. An employer must register for WorkCover insurance with an Agent of their choice if they employ persons in Victoria and:

  • Their annual remuneration is, or is expected to be, more than $7,500 in a full financial year; or
  • They employ apprentices or trainees, regardless of their annual remuneration.

If an employer does not satisfy the above requirements, they are not required to register for WorkCover insurance. However, WorkSafe is liable to indemnify these employers to pay compensation and damages to their injured workers and they must register with WorkSafe if a claim is lodged against them.

If a Victorian employer is self-insured or a federal government agency, they will be required to carry workers compensation insurance under the Comcare scheme and not the WorkSafe scheme. To see if you may need to make a Comcare claim instead of a WorkSafe claim, please consult the Comcare website.

 

Does workers’ compensation pay full salary?

No. If injured workers are unfit to perform the job that they were doing at the time of their injury (their “pre-injury earnings”), they are entitled to receive a weekly payment.

Weekly payments are paid at a percentage of an injured worker’s income prior to their injury. The payment rates are as follows:

  • First the first 13 weeks of incapacity to perform their pre-injury duties, a worker is entitled to be paid at a rate of 95 percent of the earnings prior to their injury. This is referred to as a worker’s PIAWE (pre-injury average weekly earnings).
  • From weeks 14 to 130 of incapacity to perform their pre-injury duties, a worker is entitled to be paid at a rate of 80 percent of their PIAWE.
  • For the first 52 weeks of a worker’s entitlement to weekly payments, the calculation of their payment rate will include any regular overtime and shift allowance that they performed in the 52 weeks prior to their injury.

An injured workers entitlement to weekly payments only continues beyond 130 weeks in limited circumstances.

 

What to do if this information applies to you

At Gordon Legal, we understand that workplace compensation is a personal issue.

For personalised and individual advice, we offer consultations to discuss your matter.

Please call Gordon Legal on (03) 9603 3000 or our Geelong office on (03) 5225 1600 to speak with a member of our team.

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