Workers compensation and injury management
The State Insurance Regulatory Auhtority (SIRA) regulates workers compensation and injury management in NSW under the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998.
Proprietors cannot rely on the taxation status of sex workers for workers compensation purposes.
Even though sex workers may be considered to be operating an independent business for tax purposes, for workers compensation purposes sex workers can be deemed to be an employee of the person or business who operates the premises.
A number of court cases have found sex workers to be eligible for workers compensation benefits even though:
- the proprietor and the sex worker had entered into a written contract
- the proprietor claimed the payment arrangement for the sex workers consisted of splitting fees
- the payments made allegedly represented charges for room hire or short-term rental paid for by either the sex worker and/or their client/s
- the proprietor stated they had no operational control over the sex worker regarding scheduling attendance at the premises, scheduling appointments or outcalls, or the nature of the services offered by sex workers.
These decisions require proprietors to pay workers compensation premiums for sex workers and allow sex workers to claim entitlements to workers compensation benefits if other criteria applicable to all workers are met.
If a sex worker is injured in a work-related incident and a policy is not in place, the sex worker will still be entitled to benefits and the proprietor may be personally liable for any costs associated with a claim and other penalties.
Sex workers can claim workers compensation payments if their work is a substantial contributing factor to the injury or illness by demonstrating that the required employment relationship exists and that the injury or illness happened as a result of their work.
The 1987 Act and 1998 Act place a number of obligations on employers or proprietors with regards workers compensation.
Get a workers compensation insurance policy covering all workers, including sex workers, receptionists, working directors, cleaners and security. If you don't get a policy you can be penalised.
Employers are required to keep accurate records of all wages paid to workers (including payments to deemed workers and contractors) for at least five years. There may be circumstances where records need to be kept longer.
At the end of a policy period, employers must provide their insurer with a declaration of the wages paid during that period for premium calculation purposes.
The State Insurance Regulatory Authority (SIRA) and workers compensation insurers have a legal right to audit an employer’s records to make sure employers are paying the appropriate premium.
For more information on your record keeping obligations and what payments are included as wages contact your insurer
You must maintain a register of injuries to record workplace injuries or illnesses sustained by workers regardless of whether there has been a claim.
This register must be a written report of any accidents or dangerous incidents occurring in the workplace. It will assist employers to identity situations or conditions to be addressed to prevent further accidents or threats to health and safety.
If requested by a worker, a deemed worker or their legal representatives, a proprietor must provide the business’s registered business name and the name and address of their workers compensation insurance company.
You may display the ‘if you get injured at work’ poster in a noticeable place, in languages relevant to your workers. You can also choose to provide the same information contained in the poster by other means. However, you must make this information available in some form to workers at all times.
Once you become aware of a workplace injury, you must notify your insurer within 48 hours. All injuries where workers compensation is or may be payable are notifiable to your insurer.
The Workplace Injury Management and Workers Compensation Act 1998 details the need for work injuries to be managed at the workplace. The roles and responsibilities of employers, workers and insurance companies strengthen this approach.
Both employers and workers must ensure they meet their obligations for suitable work, as required by the 1998 Act.
Establish a return to work program
A return to work (RTW) program is comprised of a formal policy and supporting procedures that an organisation must have in place to help injured workers with their recovery and return to the workplace.
All large employers with a base tariff premium of more than $50,000 must develop a RTW program in consultation with their workforce and ensure it aligns with their insurer’s injury management program.
Small employers can develop a program using the standard return to work program. Read about RTW programs and how to develop one.
You must display details of the return to work program or notify workers of its content.
Provide suitable work
Employers are required to provide suitable work to enable an injured worker to recover at work.
Suitable work (also known as suitable duties, modified duties or light duties) needs to be provided when a worker is unable to immediately return to their normal duties after an injury.
You must give your injured workers suitable work that is based on current medical advice, and within the worker’s capabilities, to enable them to recover at work. In addition, these workers may need to work for shorter periods during their first few weeks back on the job. Depending on the ill or injured worker’s capabilities, a phased return to work may need to be arranged.
You must tell your insurance company if suitable work is not available.
Return to suitable work
An injured worker with current work capacity has an obligation to cooperate with their employer and the insurer to make reasonable efforts to return to suitable work.
If an injury prevents a worker from doing their normal job for seven or more days, the worker must nominate a treating doctor who is prepared to cooperate and communicate with the employer and the insurance company to develop an injury management plan.
If a worker refuses a reasonable offer of suitable work, workers compensation payments may be suspended or reduced.
Workers should contact the insurer if their employer is unable to offer suitable work. The insurer should work with both the employer and worker to identify an appropriate strategy to help the worker return to some type of suitable work. Call 13 10 50 for more information.
Injury management plan
The insurer must develop an injury management plan that outlines how workers will be assisted to return to work as soon as possible after a workplace injury or illness.
The insurer must also develop, in consultation with you, an injury management plan that should include a return to work/recovery at work strategy for any injured worker who has sustained a significant injury or illness. The plan should include any suitable work that may be available to the worker.
The insurer is also required to provide you information, assistance and advice to assist in the worker’s return to work.
To find an insurer visit SIRA. For more advice and assistance about workers compensation or injury management, call 13 10 50 or contact the insurer.