2.1.4.2 Roles in organisations

Specific roles within organisations have been mentioned in the legislation. Certain conditions must exist for them to be treated as workers.

Volunteers - recoupable claims

Under certain Acts, volunteers assisting government agencies are entitled to compensation in accordance with Victorian worker's compensation legislation if injured whilst carrying out specified duties.

Volunteers are not workers unless deemed so and are not entitled to compensation unless specified in an Act of Parliament.

The following Acts provide that volunteers and other persons assisting government agencies are entitled to compensation if injured whilst carrying out relevant duties:

Administration of volunteers claims

Except for claims under the PAC Act or CFA Act, WorkCover administers claims of volunteers as an Agent on behalf of the Crown.

The Agent responsible for managing claims for the Department of Justice manages claims by volunteers under the following Acts:

  • Victorian State Emergency Services Act 2005
  • Juries Act 2000
  • Emergency Management Act 1986.

The Agent responsible for managing claims for the Department of Education manages claims by volunteers under the Education and Training Reform Act 2006.

WorkSafe is reimbursed from the Consolidated Fund for any compensation payments made and the costs and expenses associated with administering these claims.

Administration of volunteers claims under PAC Act and CFA Act

Claims by volunteers under the:

  • Country Fire Authority Act 1958 are administered by the Country Fire Authority
  • Police Assistance Compensation Act 1968 are administered by the Victoria Police.
Volunteering for emergency services

Workers assigned to emergency organisations by their employers as part of their contract of service remain workers of the employer.

They will only be entitled to compensation as volunteers if they are covered by the above Acts.

Volunteers in prisons and offenders working in a program

While carrying out the relevant duties, volunteers in prisons and offenders working or participating in a program under a Correctional Order, a provision of the Sentencing Act 1991 or Part 9 of the Corrections Act 1986, are deemed workers employed by the Crown.

See: The Corrections Act 1986 Part 9 | The Sentencing Act 1991

The Agent responsible for managing claims for the Department of Justice manages claims by volunteers in prisons and offenders working in a program.

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Apprentices

An apprentice is a person whom an employer has undertaken to train under a training agreement. Apprentices fall within the definition of a worker under the legislation.

Trainees undertaking traineeships that carry the same recognition as apprenticeships are afforded the same status as apprentices under the legislation. It is important to verify that the traineeship is recognised by the Department of Education as an equivalent to an apprenticeship and not a worker simply being called a 'trainee'.

Employers must have WorkCover insurance

Employers with one or more apprentices must have a WorkCover Insurance registration.

WIRC s430


This includes employers who meet both criteria:

  • employ only apprentices and
  • would otherwise be classified as exempt employers.

Students in work experience

Students employed under work experience arrangements, structured workplace learning arrangements or practical placement arrangements are entitled to claim compensation.

The following students are deemed to be workers under the legislation:

  • students at a school (including private and public) undertaking a work experience arrangement
  • students enrolled in an accredited senior secondary course at a TAFE institute or a TAFE Division within a university or with a person or body that is registered by the Victorian Registration and Qualifications Authority with respect to that course while employed under a work experience arrangement or structured workplace learning arrangement
  • students of a school (including private and public) aged over 15 years and undertaking an accredited course of study who undertake a structured workplace learning arrangement for training as part of that course of study and
  • post-secondary students of a TAFE provider employed under a practical placement arrangement.

See: Education and Training Reform Act 2006 (Parts 4.1, 4.3 and 5.4)

Employer

For legislative purposes the Department of Education and Training is deemed to be the employer for students and secondary TAFE students in respect of their employment.

Claims Lodged by Post Secondary Students for periods prior to 16 May 2006

Claims lodged by Post Secondary Students (including students not above the compulsory school age which is less than 6 years nor more than 17 years of age) for periods prior to 16 May 2006, who are employed under a:

  • worker experience arrangement,

  • practical placement agreement, or

  • structured workplace learning arrangement

(provided the arrangement or agreement would have been valid under the current Education and Training Reform Act 2006 Act) are deemed to be employed by the Department of Jobs, Skills, Industry and Regions while employed under that arrangement.

This guideline is pursuant to Administrative Arrangement Order (No. 255) (for claims lodged prior to 1 January 2023, the employer is Department of Education.)

See: Victoria Government Gazette

Government can employ students

Commonwealth Government departments and agencies can employ work experience students.

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Principal or CEO responsibility for employment conditions

Part 5.4 of the Education and Training Reform Act 2006 sets out a range of conditions and restrictions which govern the employment of students and requires the principal of the school or the CEO (however described) of the TAFE provider or registered person or body to authorise the employment within these conditions and restrictions.

See: Education and Training Reform Act 2006 (Part 4.1, 4.3 and 5.4)

Arrangement can be interstate

A work experience or structured workplace learning arrangement may be with an employer in another State or Territory provided that one of the following conditions applies:

  • the State or Territory is declared by the Governor in Council to be reciprocating for the purposes of work experience or structured workplace learning arrangements
  • the principal is satisfied that it is appropriate that the arrangement should be made.
Arrangement from an interstate school

A principal of a school in a reciprocating State or Territory can make a work experience or structured learning placement arrangement with an employer in Victoria. The arrangement must be in writing.

Coverage is provided for that pupil in the same manner as for a student at a Victorian school.

Claims are managed by the Agent of the Department of Education and Training.

Coverage in other states or territories

If a Victorian student is subject to a 'work experience arrangement' or a 'structured workplace learning arrangement' in another State or Territory, coverage depends on where the arrangement was entered into and/or what coverage would be extended by the other State or Territory. Cases should be examined on an individual basis.

Work experience arrangements

A work experience arrangement means an arrangement under which a student at a school may be placed with an employer to obtain work experience as part of their education.

The student may be at school or enrolled in an accredited senior secondary course with a TAFE institute or a TAFE Division within a university or with a person or body that is registered by the Victorian Registration and Qualifications Authority with respect to that course.

See: Education and Training Reform Act 2006 (Part 5.4)

Time limit for work experience

A work experience arrangement may not exceed 40 days during any school year or more than 10 days during any school term.

Arrangements must be in writing

The work experience arrangement must be in writing between the Principal of the school, the CEO (however described) of the TAFE provider or registered person or body and the employer with whom the student is placed.

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Structured workplace learning arrangements

A structured workplace learning arrangement means an arrangement under which a student of a school, enrolled in an accredited senior secondary course with a TAFE institute or a university with a TAFE Division or with a person or body that is registered by the Victorian Registration and Qualifications Authority with respect to that course, who is over 15 years old, may be placed with an employer for training as part of an accredited course of study.

See: Education and Training Reform Act 2006 (Part 5.4)

Time limit for placement

A structured workplace learning arrangement cannot exceed one calendar year.

The arrangement is required as part of the course

The student must be undertaking a course of study accredited by the Victorian Registration and Qualifications Authority and the training is required to be part of that course of study.

Parties to the agreement

The structured workplace learning arrangement must be in writing and signed by the following:

Employer must operate or control the training

A structured workplace learning arrangement cannot be made if the arrangement would include any period of placement at a skills or training centre that is not operated by the employer or is not under the direct control of the employer.

Conditions of the arrangement must be in writing

The structured workplace learning arrangement must be in writing and include:

  • details of the accredited course of study
  • the skills and competencies that the student is expected to obtain during the structured workplace learning
  • the total number days or hours that the student will be employed
  • the period of employment
  • the name of the employer or a person authorised by the employer to make structured workplace learning arrangements, the trading or operating name of the employer and the address of the workplace where the student will be employed.
Post-secondary students

Post-secondary students of a TAFE provider:

  • undertaking a practical placement arrangement for work experience or training with an employer are workers
  • employed under an agreement are deemed workers.

The Department of Education and Training is the employer for WorkSafe purposes for claims lodged after 16 May 2006.

The Department of Jobs, Skills, Industry and Regions is the employer for WorkSafe purposes for periods of time prior to 16 May 2006.

This guideline is pursuant to Administrative Arrangement Order (No. 255) (for claims lodged prior to 1 January 2023, the employer is Department of Education.)

See: Victoria Government Gazette

See: Education and Training Reform Act 2006 (Part 5.4)

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People in employment programs

People who suffer an injury arising out of or in the course of any employment programme provided or arranged by WorkSafe are deemed workers.

The object is to provide coverage to workers in an employment program provided or arranged by WorkSafe who are not actually employed.

A person injured whilst in a WorkCover employment program is deemed to be a worker employed by WorkSafe.

For exampleClosed A worker who injures themselves by falling downstairs at a college while on a course that is part of the employment program.

A worker (other than a worker employed by the TAC Transport Accident Commission) who is injured in a transport accident Transport accident means a transport accident within the meaning of section 3(1) of the Transport Accident Act 1986 undertaking a medical and vocational rehabilitation program (a TAC Rehabilitation Program) is taken to be a worker of the TAC.

WIRC s445
TAC Act s12(3)

Secretaries of cooperative societies

A society is defined within the meaning of either:

If there is any doubt whether the society fits these definitions, Agents can telephone the Co-operative Housing Societies Registry for confirmation.

Secretary paid over $400 is a worker

A secretary of one or more societies is deemed to be a worker if they are entitled to receive more than $400 per year on top of any expenses they incur.

Society is the employer

Earnings from other employers, including other societies, are not included when determining whether the secretary is deemed a worker of a particular society.

However earnings from other employers may be included when calculating the worker’s PIAWE.

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Employees of the Crown or administrative units

People working for the Crown or any department are employed as if the employer were a private person and are therefore entitled to claim compensation. Crown employees are entitled and Commonwealth employees are not.

The following are deemed to be workers employed by or under the Crown:

  • a responsible Minister of the Crown
  • a member of the Legislative Council or the Legislative Assembly
  • a member of public entity or of the governing body of a public entity
  • a holder of judicial office
  • a non-judicial member of VCAT Victorian Civil Administrative Tribunal
  • bail justice
  • a member of police personnel within the meaning of the Police Regulation Act 1958.
WIRC sch 1c14

Other offices appointed by Governor in Council

Examples of persons holding an 'other office' appointed by the Governor in Council include:

  • members of public hospital boards of management
  • WorkSafe’s Board of Management.

See: Health Services Act 1988

If the deemed worker is the member of a board of an entity which is registered as an employer, the claim must be allocated to that employer.

Municipal councillors

A Municipal Councillor refers to a ‘Councillor’ as defined in Section 3 of the Local Government Act 1989 (LG Act).

A Municipal Councillor is deemed to be a worker while carrying out ‘duties as a Councillor’. The Council of which a Councillor is a member is deemed to be the employer of the Councillor.

WIRC sch 1c15


Ministerial guideline

A Ministerial Guideline has been created to assist in determining when a Municipal Councillor is to be considered performing ‘duties as a Councillor’ for the purposes of the legislation. Each case is to be considered on its own facts and these guidelines are intended for assistance only.

The guideline came into operation on 1 July 2010 and apply to all claims for compensation (ie both weekly payments and claims for compensation in the form of medical and like services) made on or after this date.

Duties as a councillor

The Ministerial Guideline notes that councillor duties are duties performed by a Councillor, either inside or outside of the municipal district and that are necessary or appropriate for the purposes of achieving the objectives of the Council as set out in s3C of the LG Act. Such duties would generally include but are not limited to, the following when performed or undertaken by a Councillor in that capacity:

  • attending an ordinary, special or committee meeting of Council
  • attending a meeting with the Chief Executive Officer of Council or any other member of staff of the Council, at Council premises
  • attending or participating in a scheduled activity of a business, community or other organisation as a representative of Council
  • attending a scheduled meeting with a representative of a local, State or federal government entity as a representative of Council
  • inspecting, for the purpose associated with a Council approval process, a development or other site that is the subject of a Council approval process
  • visiting any other site as a representative of Council
  • attending a pre-approved training or professional development activity for Councillors
  • responding to communications from constituents concerning Council business.
Representative of Council

The Guideline specifies that a Councillor will be acting as ‘representative of Council’ when that Councillor is acting in a capacity to which he or she has been appointed as a representative of Council by Council resolution.

Circumstances in which a Councillor will not be performing ‘duties as a Councillor’
LG s76C
LG s76B
LG s76A

For the purposes of the legislation the circumstances in which a Councillor will generally not be taken to be performing duties as a Councillor include but are not limited to:

  • where the Councillor’s conduct contravenes the Council’s Councillor Code of Conduct approved under s76C of the LG Act
  • where the Councillor’s conduct contravenes the Councillor conduct referred to in s76B and s76BA of the LG Act
  • where the Councillor is otherwise contravening a provision of the LG Act or is otherwise acting unlawfully
  • where the Councillor is acting solely in his or her capacity as a private member of the community
  • where the Councillor is carrying out work in his or her capacity as a worker or deemed worker of another individual, company, organisation or other body or as a self-employed person.

The matters referred to above have precedence over matters referred to under ‘Duties as a Councillor’.

Office holders of public corporations are entitled

Any person holding any office as a member of any public corporation, institution or body or of the governing body thereof is deemed to be a worker.

WIRC sch 1c15

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