Workers' compensation in the sex industry

Insurance to help workers and employers

Victoria has a workers' compensation scheme called WorkCover. The WorkCover scheme is a system of law-based, compulsory insurance. It is provided by WorkSafe. Employers' contributions pay for the insurance scheme.

WorkCover benefits both workers and employers. This includes workers and employers in the sex industry.

Support for workers

If you are a worker, WorkCover can provide you with financial support and other benefits after a work-related injury or illness. WorkCover can help if, because of your work, you:

• are unable to perform your normal duties at work
• need medical and like services
• need help to return to work
• have a permanent injury

Support for employers

If you are an employer, you are insured against compensation claims for work-related injuries and illnesses. You also have access to tools and resources that help you make your workplace a safe environment.

Costs covered

WorkCover insurance covers the cost of worker benefits, including:

• weekly payments for the replacement of lost income
• medical treatment and rehabilitation costs
• return-to-work assistance and services
• lump sum compensation for permanent impairment
• common law damages for serious injuries
• legal costs

Compulsory for most employers

WorkCover is compulsory for almost all Victorian employers. This includes employers in the sex industry.

You must register for WorkCover if you:

• employ workers in Victoria
• expect to pay more than $7500 in wages and benefits in the next financial year
• employ trainees or apprentices

If your company employs you personally, then you are a worker of your own company. You have to register for WorkCover insurance.

As an employer, you might have obligations to independent contractors. In certain circumstances, independent contractors may be classified as your workers. This can also be the case for employees of the independent contractors. WorkSafe's claims manual can help you understand who is considered a worker for the purposes of WorkCover.

You can face penalties if you are not registered for WorkCover insurance when you should be.

Who doesn't have to register for WorkCover?

You do not need to register for WorkCover if you are:

• a sole trader
• an individual in a partnership
• an individual trustee of a trust and you don't employ any other people as workers

Business Victoria can help if you need more information about business structures.

Agents help with advice and support

WorkSafe has claims agents who help employers and injured workers. WorkSafe agents provide expert advice and support on WorkSafe's behalf. Agents can:

• help employers manage insurance premiums or work through a claim
• provide advice to help injured workers return to work

As an employer, you have to choose a WorkSafe agent when you apply for or renew your WorkCover insurance.

Compensation available to injured worker

The following guidance explains the compensation available to injured workers:

Medical and like expenses

Your work-related injury might require medical treatment. In this case, you may be entitled to medical and like expenses. You may be entitled to expenses even if your ability to work has not been affected. WorkSafe can pay for the reasonable costs of approved services. See WorkSafe's treatment expenses guidance for more information.

Weekly payments for time off work

You might need time off work because of your injury. In this case, you may be entitled to claim for weekly payments to cover part of your lost income.

You might need support returning to your usual duties. In this case, you might also be entitled to return-to-work assistance and services.

Find more information about weekly payments on the WorkSafe website.

Provisional payments for a work-related mental injury

If you have a work-related mental injury you may be entitled to provisional payments. Provisional payments provide early financial support while you wait on your claim's outcome. The payments cover the cost of 'reasonable' medical treatment and services. If the claim for your mental injury is later accepted, you may be entitled to weekly payments for time off work.

The claims process for workers

You can claim compensation whether you are a permanent or casual worker, full-time or part-time. You may also have more than one job. Your work-related injury or illness might be new. Or it might be an aggravation of a pre-existing condition. Circumstances and situations vary from person to person. But if you are injured or ill because of your work, you might be eligible for compensation. The following guidance explains the steps to follow when claiming compensation:

See your doctor

Your first priority when you are injured or become unwell because of work is to see your doctor. Do this as soon as possible.

Notify your employer

You must notify your employer in writing as soon as possible and within 30 days of becoming aware of your injury or illness. If you do not notify your employer within 30 days, you might not be able to claim compensation. If you cannot notify your employer, somebody can do it for you on your behalf.

Your workplace is required to have a register of injuries. You can use the register to notify your employer of your injury or illness. If you cannot access an injury register or your workplace does not have one, you should provide details to your employer in writing. Your employer must confirm in writing that you have notified them of your injury or illness.

Keep a record of all communications with your employer about your work-related injury. If formal notification of injury is difficult or not possible, you can still proceed with a claim for compensation.

Get a Certificate of Capacity

You may want to claim weekly payments if your injury has affected your ability to work. In this case, you must get a Certificate of Capacity from your doctor. A Certificate of Capacity is an official document. It describes your injury, illness and ability to work. It also describes restrictions on your ability to do your regular work duties.

Complete a Worker's Injury Claim Form

The Worker's Injury Claim Form is a form injured workers fill out to lodge a work-related injury claim. You must complete a Worker's Injury Claim form whether your claim is for medical expenses only, or also for weekly payments. Make sure you sign and date your claim form before giving it to your employer. If you are claiming weekly payments, you must submit your Certificate of Capacity with your Worker's Injury Claim Form.

If you need help with the claim form, you should contact your employer.

Call WorkSafe's advisory service on 1800 136 089 if:

• your employer refuses to accept your claim form
• you have other difficulties submitting your claim form to your employer

Payment of treatment expenses

If your claim for medical and like services has been accepted, you can have your expenses paid. Your claimed services or treatments must be pre-approved.

Once accepted and approved, your medical expenses can be paid to your healthcare provider. Alternatively, you can pay your provider and be reimbursed for the expenses. Make sure you keep your receipts. To be reimbursed, you will need to provide your treatment receipts and invoices to your WorkSafe agent.

Provide evidence of earnings

Your weekly payments will be based on your pre-injury average weekly earnings. Evidence of your earnings is important for the calculation of your pre-injury average weekly earnings. You will need to provide evidence of earnings with your claim form and in response to any requests from your WorkSafe agent.

Conventional or typical proof of earnings includes:

• official pay slips/pay advice
• full and complete taxation returns
• income statements issued by your employer

When you don't have conventional proof of earnings

If you don't have conventional proof of earnings, you will need other proof of earnings. Other proof could include, for example:

• a daily logbook
• date-stamped text messages or other electronic messages
• entries in a booking system
• bank statements
• tax invoices
• a statutory declaration from your employer confirming your rate of pay and/or weekly work hours

You should provide your other proof of earnings through a statutory declaration.

Claiming provisional payments

To receive provisional payments you must indicate that you have a mental injury. You do this by ticking the relevant box in question 2 of the Worker's Injury Claim Form. Once you have lodged a claim form, a decision about your entitlement to provisional payments usually takes up to 5 business days. Your WorkSafe agent will be in touch to notify you of the outcome.

For more information, contact WorkSafe's injury compensation advisory service.

The claims process for employers

As an employer, you have steps to complete following notification of a workplace injury or incident that may result in a claim.

If an incident is serious and causes or has the potential to cause serious injury or death, report it to WorkSafe immediately on 13 23 60.

You will also need to send a completed incident notification form to WorkSafe within 48 hours. You must keep a copy of the completed form in your records for 5 years. This applies to all incidents at your workplace, even if the injured person is not one of your workers.

The injured worker should record their injury or illness in your organisation's register of injuries. If the injured worker cannot record the injury or illness, a support person can do it on their behalf.

Your injured worker should complete and give you Part A of a Worker's Injury Claim Form. You must complete Part B of the form and submit it to your WorkSafe agent within 10 calendar days. You must also submit the worker's Certificate of Capacity if one is provided.

You should also complete an Employer Injury Claim Report and send it to your WorkSafe agent. Your WorkSafe agent will keep you informed about the claim.

A worker claiming weekly payments might ask you for payment records. You will otherwise have to provide your WorkSafe agent with pay records. Under the Commonwealth Fair Work Act 2009, an employer must make and keep employee records for 7 years. This requirement includes pay records.