One of the most common misconceptions about workplace injury compensation in NSW is that it only applies to permanent, full-time employees. If you are a casual worker, a labour hire employee, or a contractor and you have been injured at work, you may still have significant entitlements – but understanding which scheme applies to your situation is important, because the rules are not identical.
Here is a practical guide to what NSW law provides for casual workers and contractors who are injured at work.
Casual Workers: Covered by Workers Compensation
In NSW, the workers compensation scheme under the Workers Compensation Act 1987 extends to casual workers. If you are engaged as a casual employee – meaning you are on the employer’s books, they tell you when and where to work, they control how you work, and they pay your wages – you are likely a worker for the purposes of the scheme regardless of your casual status.
This means that if you are injured during the course of your employment, you are generally entitled to make a workers compensation claim. This can include weekly payments to compensate for lost earnings, the cost of medical treatment and rehabilitation, and in more serious cases, compensation for permanent impairment.
Casual workers are not excluded simply because they do not have guaranteed hours or a fixed roster. What matters is the nature of the working relationship – who controls the work, who provides the tools and equipment, whether you work exclusively for one employer, and how the engagement is actually structured.
What If You Work Through a Labour Hire Agency?
If you have been placed at a worksite by a labour hire agency, you are generally covered by the workers compensation scheme through the agency – not the host employer. The agency is your employer for workers compensation purposes, and you should lodge your claim with them and their insurer.
In some cases, both the agency and the host employer may bear responsibility, particularly if the injury was caused by unsafe conditions at the host employer’s site. This is worth exploring with a lawyer, as there may be additional avenues for compensation beyond the standard workers comp claim.
Independent Contractors: A Different Framework
Independent contractors are not automatically covered by the workers compensation scheme in the same way employees are, because they are not legally employees. However, the situation is more nuanced than a simple exclusion.
First, many workers who are called ‘contractors’ are actually employees in the legal sense – the label used in your contract does not necessarily determine your status. Courts and tribunals look at the substance of the arrangement: do you set your own hours? Do you supply your own equipment? Do you take on financial risk? Do you work for multiple clients? If your working arrangement more closely resembles employment, you may still be entitled to workers compensation regardless of what your contract says.
Second, even genuine independent contractors may be covered if they are engaged under a contract that is primarily for labour rather than for the supply of goods, and if they work principally for one principal. The NSW workers compensation legislation includes provisions that extend coverage to some contract workers in these circumstances.
Common Law Negligence Claims
Where workers compensation may not apply or may be limited, an injured worker – whether casual or contractor – may have a common law negligence claim against the party responsible for the unsafe conditions that caused the injury.
To succeed in a negligence claim, you generally need to establish that a duty of care was owed to you, that it was breached, and that the breach caused your injury. In a workplace context, this might mean that the host company failed to maintain safe premises, that machinery was not properly maintained, that adequate training was not provided, or that another employee’s conduct caused the harm.
Common law claims can result in significantly larger compensation than workers compensation benefits alone, particularly for serious injuries with long-term impacts on earning capacity. They operate alongside, or sometimes separately from, the workers compensation system.
What to Do If You Are Injured
Report the injury to the employer, agency, or principal immediately and ensure it is documented. Seek medical attention and ensure your treating doctor is aware that the injury is work-related. Keep records of everything – medical appointments, out-of-pocket expenses, time off work, and any communications with the employer or insurer.
Most importantly, get legal advice before accepting any offer or signing anything. Claims by casual workers and contractors involve additional complexity, and having an experienced lawyer assess your situation from the outset can make a significant difference to the outcome.
Speak to McDonnell Schroder About Your Claim
McDonnell Schroder are Parramatta-based personal injury and compensation lawyers with extensive experience in workers compensation and workplace injury claims for casual workers, labour hire employees, and contractors across Western Sydney and NSW. Our first consultation is free, and we work on a no-win-no-fee basis for compensation matters.
Call us today on (02) 9622 1155 or fill out our online form for a free consultation. We’re here to guide you every step of the way.
