WorkCover for Contractors and Sub-Contractors

If you work as a contractor or sub-contractors, are you still covered by WorkCover? Can you still apply for workers’ compensation in the event of an accident at your workplace?

This article looks at when WorkCover applies, and when it doesn’t.  

We provide you with tips to help you work out whether you are covered as a contractor or sub-contractor.

If you are considered a ‘worker’, your workplace is required to cover you by taking out a workers’ compensation insurance policy.  

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Are you a ‘worker’ eligible for WorkCover?

In Queensland, a worker defined as:

• A person
• Working under contract
• Who is an employee for the purpose of PAYG withholding.
  

This definition is set by the Workers' Compensation and Rehabilitation Act 2003 (Qld).

Note that a worker must be an individual. Corporations, partnerships or trusts where a person is the partner / trustee cannot be ‘workers’ for the purposes of being protected under WorkCover.

Individuals who have an ABN and are operating as an Individual or Sole Trader could be considered ‘workers’ for these purposes.

Hint: if you are a contractor you can check if you are an Individual or Sole Trader using the Australian Business Number (ABN) Lookup tool.

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What about WorkCover for sub-contractors?

What if you are a contractor who sub-contracts work out under your agreement?

Generally, it will be your responsibility to take out WorkCover policies for the people working for you.

Be aware that sometimes, someone who calls themselves a ‘subcontractor’ may still be a ‘worker’.

If you are uncertain you should always check and seek legal advice.

Example:

Jane engages a sole trader, Richard, to carry out data analysis and generate reports.  Richard has an Australian Business Number (ABN) and provides a quote for the work.  Under the contract, he can engage others to carry out the work.  Richard’s contract also provides that he is responsible for defects in the work.
Richard is a contractor in this scenario. Jane would not have to cover his services by her WorkCover policy; however, Richard would have to do this for any subcontractors he engages.

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Working out the WorkCover: cheat-sheet

Here are some quick, at-a-glance things to remember:

If you are a ‘worker’, the workplace engaging your services is responsible for taking out a WorkCover policy to cover you.

What ‘workers’ are:

• individuals.
• working under a contract.
• employees for PAYG purposes.
  

Contractors can still be workers even if they:

• have an ABN.
• work at an hourly rate, on commission, per item or for time worked.
• issue invoices
• work from home or telecommute.
• Claim to be subcontractors.
  

What ‘workers’ aren’t:

• corporations.
• a trustee of a trust
• a partner in a partnership.
  

Check:

1. Are you operating under an ABN as an Individual or Sole Trader?  If yes, you may be a ‘worker’ requiring your workplace to take out workers’ compensation insurance for you.
2. Are you an employee or contractor?
   

If you are a contractor, your workplace is not likely to be required to take out workers’ compensation insurance for you.

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These are general guidelines and there will always be situations that are uncertain. If you've suffered a workplace injury and would like to know if you have the right to claim, get in touch with our expert personal injury lawyers based in Brisbane, Gold Coast, and Sunshine Coast.