While most employers are aware that workers' compensation insurance is compulsory if they employ workers in Queensland, cross border arrangements can sometimes cause confusion.
Some of the most frequently asked questions from employers include:
- "Should my interstate workers be covered under my Queensland policy?" and
- "If my workers work some of the time in another state do I cover them in Queensland or the other state?"
This webinar provides more information about covering workers who work in more than one state or territory.
You can watch the webinar or review the presentation slides (PDF, 0.34 MB).
Questions and Answers
Here are the questions and answers from the session.
Question: A company employs casual workers on 417 visas who work in different locations across Australia. Workers sign a contract which says they have the intention to return to Queensland following their contract. Are they considered a Queensland worker?
Answer: Section 417 visas are described by the Department of Immigration and Border Protection as "Visas for young people who want to holiday and work in Australia for up to a year".
The requirements to obtain such a visa are:-
- The Applicant must be outside of Australia when the Application is made;
- The Applicant must be at least 18 but not yet 31 years of age.
The visa allows for up to 6 months of employment with an employer, effectively a "working holiday".
I assume that the likely scenario is that the worker holding the 417 visa has come to Australia on holiday and is now, while in Australia and in the State of Queensland, seeking employment.
The contract of employment will accordingly be formed in the State of Queensland.
In applying the test in Section 113 of the Act, the cascading test is:-
(a) Usually works; or
(b) Usually based.
The first test to apply is "usually works".
In the question it is stated that "the company employs casual workers who work in different locations across Australia."
The court will look not simply at what the company does with workers employed under a 417 Visa on an overall basis but rather will look at the individual worker's situation.
If the individual worker:-
- Worked for the company in more than one State; or
- There was a clear intention that the individual worker was to work in more than one State;
Then it is likely to be held that the test of "usually works" has failed to determine state the workers' employment is connected with.
In such a circumstance under the test of "usually based", it is likely to be held that the worker is usually based in Queensland where the contract of employment is entered into and where he returns at the completion of each period of employment, before commencing further employment.
If, on the other hand, it was intended that the worker perform one job interstate or several jobs in the one state, then under the test of "usually works" it is likely to be held that the workers employment is connected with that one state rather than Queensland.
The mere specification in the contract that the worker "intends to return to Queensland" is unlikely to determine which state the workers employment is connected with.
Question: Usually based between an international location and Queensland?
Answer: The applicable section is section 115 of the Act which provides at subsection 3 that "a worker's principal place of employment in a country if:-
(a) The worker usually works in that country; or
(b) For a worker who usually works in more than one country, the employer's principal place of business is in that country".
The principals associated with "usually works" detailed in my lecture would accordingly apply.
The second test of "usually based" is not a test.
Instead, if the worker usually works in more than one country, the test under section 115(3)(b) is where is the employer's principal place of business.