Types of workers
Victorian workers compensation legislation establishes where an individual considered a worker in certain types of occupations or industries.
These industries or occupations include:
The following persons are deemed to be workers of the Crown for WorkCover insurance purposes:
- A responsible Minister of the Crown
- A member of the Legislative Council or the Legislative Assembly
- A person holding any judicial or other office to which the person is appointed by the Governor in Council
- A bail justice
- Any person being the holder of any office as member of any public corporation, institution or body or of the governing body thereof
- A member of police personnel within the meaning of the Police Regulation Act 1958 in respect of the exercise and performance of the powers and duties as such a member, whether arising at common law or under any statute by the instructions of superiors or otherwise.
Who is a door-to-door seller?
For WorkCover insurance purposes, a door-to-door seller is an individual or other legal entity (the seller) who is engaged by a hirer/vendor under a contract or arrangement (selling arrangement) and all of the following conditions apply under that selling arrangement:
- The seller is engaged:
- to sell goods door-to-door, or
- to party plan on-sell goods, or
- sell services ancillary to the sale or on-sale of goods referred to in either point above.
- The seller is engaged in the sale or on-sale of goods including all moveable personal property other than money or livestock and including any removable fixtures of real estate; but not including services provided to any personal property or fixtures of real estate, for example, cladding and painting.
- The seller does not sell or on-sell goods to a body corporate.
- The seller is not an employee, but has an agency arrangement for the door-to-door sale or on-sale of goods directly to the public.
- The sale or on-sale of goods by the seller takes place either at a customer's residence, or at the customer's place of work, or elsewhere than at the vendor's trade premises or a place where goods of that sort are normally offered for sale.
- Where the sale by the seller is made away from the vendor's trade premises, this cannot have been made as a consequence of the request of the customer or the agent of the customer.
- The original approach (that is, the initial physical attendance, not a telephone contact) leading to the sale must not be made at the vendor's premises.
- The sales made by the seller are either cash sales or credit sales but not sales on a monthly credit arrangement.
- Goods purchased from the seller must be used by the purchaser solely for domestic purposes and must not include goods purchased to be further processed in the course of manufacture or goods purchased for commercial or industrial purposes.
- The seller must personally organise the direct sale of the goods to the end users of the goods.
Is a door-to-door seller a worker for WorkCover insurance purposes?
A door-to-door seller, while performing work under a selling arrangement, is not a worker of the hirer/vendor for WorkCover insurance purposes unless WorkCover determines that that arrangement has been entered into with an intention of directly or indirectly avoiding or evading the payment of WorkCover premium by any person.
Ministers, preachers or leaders of religious organisations
If by Order in Council published in the Government Gazette (at the request of a religious body or organisation specified in the Order as having made the request), the Governor in Council declares that persons within a class specified in the Order, who are not otherwise workers for WorkCover insurance purposes are workers of that body or organisation, then for WorkCover insurance purposes, the specified persons within the class will be treated as workers employed by the religious body or organisation; and such amounts as are determined by agreement between WorkCover and the religious body or organisation are remuneration.
For more information on this see: Whether Ministers of Religion can be Workers
A Municipal Councillor, while carrying out their duties as a Councillor, is recognised as a worker by Victorian workers compensation legislation; and the Council of which the Councillor is a member is, while they are carrying out duties as a Councillor, their employer.
What is outwork for WorkCover insurance purposes?
Outwork means contract work which involves packing, processing or work on articles or material in the clothing industry. This work must be performed outside the hirer's factory or workshop and in or about a private residence or other premises that are not necessarily business or commercial premises.
Which outworkers are workers for WorkCover insurance purposes?
If an outworker enters into a contract with a hirer (other than the outworker's family business) then so long as the outworker performs some of the outwork personally, the outworker is a worker of the hirer for WorkCover insurance purposes.
If a family business enters into a contract with a hirer to perform outwork then each person engaged by the family business to perform the outwork under that contract is a worker of the hirer for WorkCover insurance purposes.
From 1 July 2011 owner drivers operating as sole traders or partnerships (and often referred to as 'natural persons') are deemed workers of their hirer (the courier or transport company they work for) unless the VWA determines they are carrying on an independent business or trade.
Incorporated owner drivers are not deemed workers of their hirer and are responsible for their own WorkCover insurance.
The VWA's Owner Driver Guideline sets out when it considers an unincorporated owner driver to be running their own independent business. The Guideline also establishes the percentage deductions that apply based on the various type and size of vehicles.
Participants of declared training programs – (the Commonwealth Green Corps and Special Employer Support programs)
If a person is a participant in the Commonwealth Green Corps program or the Commonwealth Special Employer Support program, then while participating in the program the provider of that program is deemed to be the employer of the participant for WorkSafe purposes; and the training allowance payable to the participant in that program is deemed to be remuneration for WorkCover insurance purposes.
Riders and harness drivers participating in a race in accordance with Section 19 of the Racing Act 1958
If a person is engaged to participate as a rider in a horse race conducted as part of a race meeting held under Racing Victoria's 'Rules of Racing'; or if a person other than an apprentice or the owner or trainer of the horse to be ridden, holds a licence, permit or approval to ride granted in accordance with the 'Rules of Racing' and they agrees to do 'ride work' on a horse at any racecourse or training track or in the environs of a racecourse or training track, then for WorkCover insurance purposes, that person shall be treated as a worker solely employed by Racing Victoria while participating as a rider or doing riding work. Any amounts paid to the person in respect of so participating or doing shall be remuneration.
If a person is engaged to participate as a rider in a horse or pony race; or a driver in a harness race – conducted as part of a mixed sports gathering within the meaning of the Racing Act 1958 and held in accordance with section 19 of the Racing Act 1958, for WorkCover insurance purposes, while that person is participating, they shall be treated as a worker of the club, association or body of persons holding the mixed sports gathering; and amounts paid or payable to the person are remuneration.
Secretaries of co-operative housing societies and co-operatives
Who is a secretary of co-operative housing society or a co-operative?
This means a secretary of a co-operative housing society within the meaning of the Co-operative Housing Societies Act 1958 or a co-operative within the meaning of the Co-operatives Act 1996.
Which secretaries are workers for WorkCover insurance purposes?
If as a secretary the secretary is entitled to be paid more than $400 per annum then the secretary is a worker of the co-operative housing society or the co-operative for WorkCover insurance purposes. For WorkCover premium purposes the amount (other than in respect of expenses) paid or payable to the secretary is remuneration.
When there is a arrangement between the owner of the land and an individual (the sharefarmer) whereby the sharefarmer is entitled to receive a share of the income derived from the land (either in cash or in kind) in exchange for their work on that land the sharefarmer may be the worker of the land owner.
For the sharefarmer to be the worker of the land owner they must be entitled to receive less than one third of the income derived from the land or the written sharefarming agreement must state that the land owner is liable for the sharefarmer in the event that they are injured out of or in the course of the sharefarming work (for instance, under Victorian workers compensation legislation). More information on sharefarmers can be found in the sharefarmer WorkCover Guideline.
If a person is engaged by an employer to participate as a contestant in a sporting or athletic activity (not in relation to section 19 of the Racing Act), then the person will not be treated as a worker for WorkCover insurance purposes while they are participating as a contestant in a sporting or athletic activity; or engaged in training or preparation for the contest; or travelling between a place of residence and the place at which the person is so participating or so engaged.
Students undertaking work experience
Secondary school students
If a student at a school is placed with an employer for work experience; and the principal of the school has made a work experience arrangement with the employer in accordance with the Education and Training Reform Act 2006, then while undertaking the work experience the Department of Education and Early Childhood Development is deemed to be the employer of that student for WorkCover purposes and the amount paid to be remuneration for WorkCover insurance purposes
Post-secondary TAFE students
If a post-secondary student of a TAFE provider is placed with an employer for work experience or on the job training; and the governing body of the TAFE provider has entered into a 'practical placement agreement' with the employer about the placement of that student in accordance with the Education and Training Reform Act 2006, then while employed under the agreement the Department of Education and Early Childhood Development is deemed to be the employer of that student for WorkCover insurance purposes; and the amount paid or payable to the student for work under the agreement is deemed to be remuneration for WorkCover insurance purposes.
Undergraduate and Post-graduate students
University students or students studying university-level qualifications that are undertaking work placements, work experience, clinical research, research based in a workplace as part of their qualification or course of study may not be recognised as workers by the Workplace Injury Rehabilitation and Compensation Act. For advice on a case-by-case basis please contact the Premium Policy Team firstname.lastname@example.org
Which taxi drivers are workers for WorkCover insurance purposes?
When a person has the use of a motor vehicle (the driver) under a contract of bailment with another person (the operator) and they (the driver) use the vehicle to carry passengers for reward and they (the driver) are required under the contract to make payments to the operator for the use of the motor vehicle, then the operator is deemed to be the employer of the driver for WorkCover insurance purposes.
What must the operator declare as rateable remuneration for WorkCover Insurance purposes?
If the operator is deemed to be the employer of the driver, then the amount received by the driver for carrying passengers, less the amount paid or payable to the operator for the use of the motor vehicle must be declared as rateable remuneration by the operator for WorkCover insurance purposes.
Who is a timber contractor?
A timber contractor is an individual who is engaged by a hirer and agrees to undertake all or any of the following activities under a timber contract:
- Fell trees and deliver the timber to the hirer;
- Cut firewood and deliver the firewood to the hirer;
- Fell trees or cut shrub on land of which the hirer is the occupier;
- Clear stumps or logs from land of which the hirer is the occupier;
- Remove stumps or logs, whether by loading them onto a vehicle or otherwise.
When is a timber contractor a worker?
A timber contractor is a worker of a hirer where they:
- are engaged in the course of or for the purposes of a trade or business undertaken by the hirer;
- are a natural person or a partner in a partnership; and
- agree to undertake work for the hirer under a timber contract.
When is a timber contractor not a worker?
A timber contractor is not a worker where the timber contractor:
- subcontracts the timber contract in its entirety;
- does not personally perform any work under the timber contract and employs or engages persons to perform all of the work under the timber contract; or
- is a partner in a partnership of two or more individuals and no part of the work under the timber contract is performed personally by any member of the partnership.
What remuneration is rateable for timber contractors?
Where a timber contractor is taken to be a worker, the amount paid or payable by the hirer to the timber contractor for the performance of work, less the applicable standard deduction, is considered to be remuneration for WorkCover Insurance premium purposes.
What is the standard deduction applicable to timber contractors?
If a timber contractor working as a tree feller provides his or her own materials or equipment, and does not purchase such materials or equipment from the hirer, a standard deduction of 25% is applicable where the total amount paid by the hirer includes amounts in respect of those materials or that equipment.
Workers obtained from places of pick up
If a person is ordinarily engaged in any employment that involves persons customarily attending certain pre-arranged places (places of pick-up) where employers select and engage persons for employment then any such person shall be deemed, while in attendance a place of pick-up for the purpose of being selected, to be working under a contract of employment with an employer, and the employer who last employed that person in customary employment is deemed to be their employer.