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Cross Border Provisions relating to workers compensation

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All employers should ensure that they have determined the ‘State of Connection’ of each of their Workers. 

The Scheme Agent will take into account the cross border provisions to determine:

(a) whether an injured Worker is entitled to Benefits in NSW

(b) when a Workers Compensation Policy is required in NSW

(c) when the wages of particular Workers working in more than one jurisdiction should be included in NSW for the purpose of calculating Premiums.

Determining a Worker’s ‘State of Connection’ 

Workers are only eligible for compensation in their ‘State of Connection’, which is determined using the following tests: 

Test A – the State in which the Worker usually works in that employment.

OR 

Test B – if no State is identified by test A, the State in which the Worker is usually based for the purposes of that employment.

OR 

Test C – if no State is identified by test A or B, the State in which the Employer’s principal place of business in Australia is located.

  • If no State is identified by these tests, a Worker’s employment may still be connected with NSW if the Worker was in NSW when the Injury occurred and the Worker is not entitled to compensation for the Injury outside Australia. 
  • An Employer will therefore only need to obtain Workers’ Compensation cover(s) in their Workers’ ‘State of Connection’. 
  • Employers are still required to maintain a Workers Compensation insurance Policy for all of their Workers. 
  • Cross border legislation determines the jurisdiction(s) in which Workers Compensation cover is to be obtained. 
  • It should be noted that even under the complementary cross border arrangements Employers may still require coverage in more than one State as they may have some Workers with a NSW ‘State of Connection’ and others connected with another jurisdiction. 

Application to Premiums- declaring Wages 

Wages of Workers with a NSW ‘State of Connection’ are to be included in an Employer’s Wage estimates and declarations. A number of rules apply, please contact our office on (02) 9894 9155, option 2, or email general@taggartgroup.com.au, for further information. 

Application to Claims 

The Cross Board provisions shall be applied:

  • Compensation is only payable where a Worker is connected with NSW.
  • If NSW is not the ‘State of Connection’, the Claim may be rejected.
  • A worker cannot receive benefits from more than one jurisdiction.  
How does this benefit employers?

The cross border arrangements reduce red tape for employers and make it easier to do business by removing the need for the majority of employers to obtain multiple workers compensation policies for workers who are temporarily working interstate.

How does this benefit workers?

Workers will benefit from the certainty in knowing what jurisdiction they are connected to and therefore what entitlements they have. It will also ensure they do not fall into the current gaps in coverage between the various state schemes.

Recent developments

There was a recent case in the ACT Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 which cast serious doubt on the cross-border provisions. The judge in that case placed a definition on ‘usually’ to mean ‘habitually’ or ‘customarily’ and found that this was not a quantitative assessment of ‘most’ time. Habitual work in more than one jurisdiction requires examination of the next test according to this judge.

We will follow up in future articles with the outcome of this review.

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