2.1.4.3 Specific work types

A range of occupations have been specifically mentioned in the legislation for specific work types. Certain conditions must exist for them to be treated as workers.

Timber contractors

A timber contractor is deemed to be working under a contract of service if the following criteria are met.

The timber contractor:

• must be a natural person/s – this can include an individual in a partnership
• must be engaged by a principal for their trade or business
• must agree to one of the following:
• fell trees and deliver the timber to the principal
• cut firewood and deliver it to the principal
• fell trees or cut scrub on land occupied by the principal
• clear stumps or logs from land occupied by the principal
• remove stumps or logs from land occupied by the principal using a vehicle or otherwise.
• must not:
• sublet the contract in its entirety
• employ or engage persons to perform all the work under the timber contract.

Timber contractor partnership

If the contractor is in partnership, the contractor is deemed to have done part of the work themselves if any of the partners actually does any part of the work personally.

Principal is deemed the employer

The principal is deemed the employer and the amount payable to the contractor for work performed under the contract, less the prescribed percentage, is deemed to be remuneration.

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Outworkers

Outwork is defined as clothing work contracted to be performed outside the contractor’s factory or workshop.

A natural person who is an outworker within the meaning of the Outworkers (Improved Protection) Act 2003 is deemed to be a worker by the Act.

Whoever engages the services of an outworker to perform outwork within the meaning of the Outworkers (Improved Protection) Act is deemed to be the employer of the outworker.

If a person engages a family business or family entity as defined by the Outworkers (Improved Protection) Act then:

• each person engaged by the family entity or family business who performs outwork within the meaning of that Act is deemed to be a worker and
• the first-mentioned person is deemed to be the employer of each person in the family business or family entity while they are performing outwork.

Member of the outworker’s family

Share farmers

A share farmer is a person:

• under contract to the land owner to do any work in relation to land substantially for primary production
• to be remunerated in whole or in part by receiving a share of the income derived from the land whether in cash or in kind.

 

Owner

The owner includes any person in possession of or entitled to receipt of, the rents and profits from the land.

Primary production

Primary production means agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, cultivation of soils, gathering in of crops or rearing of livestock.

Share farmers are deemed workers subject to either condition

Share farmers are only deemed workers if either of the following criteria applies:

The share farmer is employed under a contract:

• with the owner of the land under which the share farmer is entitled to receive less than one-third of the income derived from the land. This can be in cash or in kind or partly in cash and partly in kind or
• in writing, which provides that the land owner is liable to pay compensation for any injury resulting from any work done by the share farmer in performing the contract.

Share farmers' family

Members of the share farmer’s family are excluded as workers of the land owner if they are employed by or assist the share farmer with the share farmer’s duties, whether under the share farmer’s contract with the landowner or otherwise.

Members of the share farmer's family are workers if they work under a contract of service with their employer. They can have a contract of service with either the:

• land owner
• share farmer.

 

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Sporting contestants

Professional sportspeople or sporting contestants are ineligible to receive compensation for injuries sustained as a contestant in a sporting activity.

Sporting contestants (with the exception of jockeys and other riders as below) are not eligible to receive compensation for injuries sustained while:

• participating as a contestant in a sporting or athletic activity
• engaged in training or preparation with a view to so participating or
• travelling between a place of residence and the place at which the person is so participating or engaged.

Semi-professionals

Semi-professional sports persons might be covered in other circumstances.

Example scenario: If a person is:

• engaged by a club as a footballer
• also engaged as the club's:
• administrator
• to do marketing or promotional activities
• entitled to payment for those activities

the person would be covered for injuries sustained whilst doing those other activities but not as a footballer.

Coaches or paid officials

Coaches or paid officials are covered if a contract of service exists.

Umpires are usually controlled and directed by an association, which also sets the fees for services. Therefore, the association would commonly be the employer.

Jockeys

Jockeys and apprentice jockeys are not excluded from entitlement to compensation like other sporting contestants.

Jockeys and apprentice jockeys are deemed to be workers, and therefore entitled to compensation if they:

• hold a licence granted in accordance with the Rules of Racing (clause 17(2) Schedule 1, Workplace Injury Rehabilitation and Compensation Act 2013, ‘WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013’)

See: Rules of Racing of Racing Victoria | Racing Act 1958

Riders

Riders are not excluded from entitlement to compensation like other sporting contestants.

Riders are entitled to compensation if they:

• are engaged as a rider (not a jockey or apprentice jockey) or as a driver in a horse, pony or harness race at a race meeting on a licensed racecourse or on land authorised to hold race meetings within the meaning of the Racing Act 1958.

Jockeys employed by Racing Victoria are deemed to be workers in certain circumstances

Under clause 17(3) Schedule 1 of the WIRC Act, a person while participating as such a rider or doing such riding work as described below, is deemed to be a worker solely employed by Racing Victoria if they:

• are a jockey or an apprentice jockey who holds a licence granted in accordance with the Rules of Racing and is engaged to participate as a rider in a horse race at a race meeting
• who is a jockey or an apprentice jockey who holds a licence granted in accordance with the Rules of Racing and who agrees to do ride work for a trainer licensed under the Rules of Racing, at a location authorised for the holding of a horse race under the Racing Act 1958; or at a training venue occupied by a club registered in accordance with the Rules of Racing; or at a training venue occupied by a trainer licensed under the Rules of Racing or at a connecting route between any of the training venues referred to above.

This does not extend to the owner or trainer of the horse being ridden (clause 17(3)(b) Schedule 1 WIRC Act).

See: Rules of Racing of Racing Victoria

Riders and drivers in certain races are employed by the organising club, association or body

Under clause 18 of schedule 1 of the WIRC Act, a person who is engaged to participate as:

• a rider in a horse race or pony race, or
• a driver in a harness race,

where the race is conducted as part of a mixed sports gathering (within the meaning of the Racing Act 1958) is deemed to be a worker while participating. The club, association or body who organised the mixed sports gathering is deemed to be the rider’s or driver’s employer.

In s3 of the Racing Act ‘mixed sports gathering' means:

• a meeting for foot races bicycle races or any other games exercises pastimes or contests of a kind usually conducted carried on contested or decided on any land whatsoever to which persons are admitted either at all times or only at certain times (whether on payment of an entrance fee or charge or otherwise) for the purpose of taking part in or witnessing any such races, games, exercises, pastimes or contests, being a meeting which:
• the races which take place include races of one or more of the following kinds, namely horse races, pony races and harness races’.

See: S3 Racing Act 1958

 

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Door to door sellers & party planners

A door to door seller is an individual or other legal entity (the seller) who is engaged by a hirer/vendor under a contract or arrangement (selling arrangement) and all of the following conditions apply under that selling arrangement:

• The seller is engaged:

1. To sell goods door to door or
2. To party plan on-sell goods or
3. Sell services ancillary to the sale or on-sale of goods referred to in (a) or (b)

• The seller is engaged in the sale or on-sale of goods including all moveable personal property other than money or livestock and including any removable fixtures of real estate but not including services provided to any personal property or fixtures of real estate, for example, cladding and painting.
• The seller does not sell or on-sell goods to a body corporate.
• The seller is not an employee but has an agency arrangement for the door-to-door sale or on-sale of goods directly to the public.
• The sale or on-sale of goods by the seller takes place either at a customer's residence or at the customer's place of work or elsewhere than at the vendor's trade premises or a place where goods of that sort are normally offered for sale.
• Where the sale by the seller is made away from the vendor's trade premises, this cannot have been made as a consequence of the request of the customer or the Agent of the customer.
• The original approach (ie the initial physical attendance, not a telephone contact) leading to the sale must not be made at the vendor's premises.
• The sales made by the seller are either cash sales or credit sales but not sales on a monthly credit arrangement.
• Goods purchased from the seller must be used by the purchaser solely for domestic purposes and must not include goods purchased to be further processed in the course of manufacture or goods purchased for commercial or industrial purposes.
• The seller must personally organise the direct sale of the goods to the end users of the goods.

Is a door to door seller a worker for WorkCover insurance purposes

A door to door seller, while performing work under a selling arrangement, is only a worker of the hirer/vendor for WorkCover insurance purposes if WorkSafe determines that arrangement has been entered into with an intention of directly or indirectly avoiding or evading the payment of WorkCover premium by any person.

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