Worker right to claim

Published: 12 August 2019
Last edited: 12 August 2019

Right to claim workers compensation

All workers or deemed workers in NSW have the right to claim workers compensation if they suffer a work-related injury or disease.

This is regardless of any individual written or verbal contract, or agreement that they may have agreed to or signed with an employer.

Uninsured employers

A worker can still make a claim for compensation if:

  • their employer does not have a valid workers compensation policy, or
  • they are unable to identify their employer after search and inquiry.

Workers can contact the Workers Compensation Independent Review Office (WIRO) on 13 94 76 for help finding their employer’s insurer.

If an employer does not have a workers compensation policy and is not a self-insurer, workers can make a claim against the Uninsured Liability Scheme (ULS).

The Nominal Insurer becomes the insurer liable for claims against uninsured employers. These claims are managed by icare Claims Support Services who can be contacted on 1800 221 960.

icare may conduct investigations to determine liability and/or seek further claim information. They may also seek reimbursement from the uninsured employer or insurer (if one is identified) for actual claims costs.

If the uninsured employer is a corporation and the payments are not recoverable, then icare is entitled to recover the payments from a person who was a culpable director of the corporation at the relevant time.

The Workers Compensation Commission (the Commission) has jurisdiction to determine claims made against the Uninsured Liability provisions.

If a worker is entitled to claim compensation against a principal contractor, as defined in section 20 of the Workers Compensation Act 1987 (1987 Act), then the claim must be brought against the principal (see ‘Uninsured sub-contractors’ below).

Uninsured sub-contractors

Where a worker employed by a sub-contractor is injured at a time when the sub-contractor does not have appropriate workers compensation insurance, the principal (head contractor who engaged the sub-contractor) becomes liable to pay any compensation to the worker.

Section 20 provisions work to motivate principal contractors to proactively manage their sub-contractors, and ensure they have the appropriate workers compensation insurance coverage.

If the worker is injured, the principal is made liable to pay compensation to the worker as if they were the direct employer. At the same time, the actual employer (sub-contractor) also continues to be liable for compensation.

Illegal employment

Illegal employment (for example, working while on a holiday visa) does not prevent a worker from bringing a claim for compensation.

Section 24 of the 1987 Act states that if at the time of the injury, the worker was engaged in an illegal contract of service or training, the matter may be dealt with as if the contract was valid.

In practice and in-line with the beneficial nature of the workers compensation system, illegal employment is generally not a barrier to claiming compensation.

No contribution from workers

An employer cannot, directly or indirectly, take or receive any money from a worker in respect of any liability under workers compensation legislation.

Compensation cannot be assigned

Workers compensation cannot be assigned, charged or attached (for example, transferred to another person or held as collateral for a loan).

Compensation does not pass to another person. However, this does not operate to prevent, for example, the garnishing of weekly compensation under a child support agency order.

Under section 66 of the 1987 Act, at the time of a work-related injury or illness, rights to entitlements under the Acts apply and accrue to the worker. If the worker dies before those entitlements are paid, the entitlements become payable to the worker’s estate.