Nearly three million workers – or about a quarter of the Australian workforce – are employed in a casual capacity. Employing casuals has become increasingly popular for many businesses because it offers them added flexibility and mobility in terms of staff numbers and costs.
In addition, casuals are generally not entitled to the same entitlements as full or part-time permanent staff, such as paid sick, carer’s and annual leave. Instead, casual workers are usually paid a loading of anywhere between 15 and 25 per cent of the worker’s hourly rate, determined by the award or agreement that covers the job, to reflect the fact they do not receive the other entitlements.
One entitlement casual workers do have under law that they share with permanent employees is the right to claim workers’ compensation.
WorkCover schemes (also called WorkSafe or ReturnToWork, in some states) in every state and territory of Australia mean all workers – including casual or temporary workers – are able to make a claim for workers’ compensation should they be injured during the course of their employment.
What can a casual claim under workers’ compensation?
If a casual worker suffers injury or illness in the course of their work, they can make a workers’ compensation claim to cover the expenses related to that illness or injury. This includes weekly payments to cover any loss of income as a result of being unable to work due to the injury, money to cover medical, hospital and rehabilitation expenses, as well as a lump sum if the worker is permanently impaired by the injury.
The amount available to an injured worker is governed by the details of each jurisdiction’s compensation scheme but operates on a ‘no fault’ basis, meaning a casual worker can make a claim for compensation even if they did not follow the correct procedures detailed by the business. Exceptions to the ‘no fault’ provision exist where the casual worker has engaged in obvious or flagrant misconduct in performing their role.
Common law claims
Apart from the statutory claim a casual is able to make under WorkCover, they can also still make a common law damages claim if they believe the employer’s negligence was the cause of their injury or illness. The damages a claimant can achieve through this sort of claim are potentially much larger than those available through a statutory workers’ compensation claim, but the advice and guidance of legal professionals with expertise in such claims should be sought.
The usual steps in proving a negligence claim will be required: that the employer owed the casual worker a duty of care, that they breached that duty by not, for example, providing a safe workspace, and that the breach was the cause of the worker’s injury or illness.
What should a casual worker do when injured
Whether making a WorkCover or a common law claim for compensation, evidence and details of what happened, when and how it happened, as well as the nature of the injury, are essential to supporting your claim.
This is a particularly important consideration for casuals. Employers have a legal obligation to provide a safe workplace in order to avoid the risk of employee injury, including casuals, as well as to provide support and assistance in the event of a worker being injured.
The fact casuals work irregular hours means they are not always included in essential information distributed by an employer about workplace health and safety, such as injury-avoiding demonstrations of safe manual handling and other safety procedures. Additionally, the temporary nature of the work means casual employees often feel hesitant and inhibited in raising health and safety issues, or seeking necessary information, lest they be seen as trouble-making or time-wasting.
A casual worker injured while at work should take a number of steps once they’ve sustained the injury.
Firstly, seek immediate help and treatment for the injury if first aid is required. If not, you should visit your regular doctor as soon as possible after the accident, or as soon as the injury manifests itself if it does not become obvious until some time after the incident which caused it. Be sure to keep a copy of all medical records relating to the injury or illness, as well as any receipts or invoices for the costs incurred. These will be required in any compensation claim you later make.
The incident and the resulting injury should be reported to your employer as soon as possible after they occur. Even if the injury is minor, inform the supervisor or manager as the injury may be aggravated by continuing to work under the conditions which caused the injury. Ideally you should record the details for the employer in writing. This is also crucial in case the injury or illness only emerges, or worsens, at a time after the incident occurred.
If you are a member of a union, the incident and injury should also be reported to the on-site union delegate. Ideally, it should also be reported to the OH&S representative at the workplace. Many workplaces will have an incident report which you should fill out as comprehensively as possible.
Lodging a claim
If a casual worker suffers a work-related injury that is serious enough to affect their ability to work, or their overall lifestyle, they can file a WorkCover claim through their employer or directly through the WorkCover provider.
The claims process will differ slightly between the various jurisdictions around Australia so again, expert legal advice is a wise course to take in order to ensure you fill out the correct forms and supply the correct supporting information. Claims for loss of income, for example, will generally require you to obtain a Certificate of Capacity which confirms you are unable to work, or can only work in a more limited capacity. An insurer may also require the injured casual worker to undergo a medical examination with a medical practitioner of its choosing, to confirm the extent of your injury.
In most cases, a WorkCover claim can be lodged in relation to:
- Physical injuries, such as fractures, lacerations or back injuries;
- psychiatric or psychological disorders, such as depression or PTSD;
- aggravation of a pre-existing condition while at work.
It’s important for a worker with casual status to remember that Australian employers have four main responsibilities under the Fair Work Act and the modern award system:
- Provide a safe workplace so as to avoid risk of employee injury.
- Provide support and assistance in the event of employee injury.
- Ensure insurance coverage to fully cover employee in case of injury.
- Potentially aid the employee’s return to work.
The third responsibility means it is illegal for an employer to dissuade, threaten or otherwise obstruct a casual employee from recording the details of a workplace accident or lodging a compensation claim.
How expert legal advice can help
Whether engaged directly by a company, or through a labour hire company, many people working as temps or casuals feel especially vulnerable in the modern labour market. In most cases their hours are not guaranteed, nor the length of their employment.
For these reasons many workers with casual status are reluctant to ‘rock the boat’ about work-related issues, including if they suffer an injury during the course of their employment. But as this article has made clear, casual employees have access to workers’ compensation schemes just like any other employee. Additionally, employers have an obligation to provide a safe workplace and ensure there is insurance in place to cover all its workers.
While most employers will be fully aware of their obligations in relation to casual workers who are injured in the workplace, some may attempt to avoid their responsibilities by, for example, questioning the employment status of the worker. In such situations it’s highly advised a casual worker consult legal professionals who specialise in workers’ compensation and personal injury claims. They can advise you on the strength of your case, the requirements to prove your claim and any statutory time limits. They can manage the liaison with employer, insurer and any government agencies responsible for workers’ compensation schemes.
By consulting experts, the stress and worry of making a claim for compensation as a result of a workplace injury can be lessened, particularly for casual workers who may be nervous about challenging any resistance to a claim by an employer. At Law By Dan, our compensation lawyers can help you today.
