2.1.5 Cross border provisions
2.1.5.1 State of connection | 2.1.5.2 Where worker usually works | 2.1.5.3 Where the worker is usually based | 2.1.5.4 Employer's principal place of business | 2.1.5.5 Compensation for workers injured outside Australia | 2.1.5.6 Person not to be compensated twice for the same injury | 2.1.5.7 Entitlement to damages outside Victoria
The provisions eliminate the need for employers to obtain workers’ compensation coverage for individual workers in more than one State. Under the provisions, the State or Territory in which workers’ compensation premiums relating to a particular worker are payable, is referred to as the worker’s 'State of connection'.
The benefits to which a worker is entitled are also determined by the worker’s 'State of connection'.
As not all States and Territories have introduced cross border provisions at this stage, employers with workers working in more than one State should be encouraged to check with workers’ compensation Authorities in those States to ensure that appropriate insurance arrangements are in place.
These provisions do not mean that every employer will require only one policy of insurance or registration in one State for all their workers.
2.1.5.1 State of connection
There is no entitlement to compensation under the legislation other than in respect of employment that is connected with Victoria.
The fact that a worker is injured outside Victoria does not prevent an entitlement to compensation under the Victorian law in respect of employment that is connected with Victoria.
See: State of Connection guideline
Tests for state of connection
A worker’s State of connection is determined by:
- the State in which the worker usually works in that employment or
- if no State is identified by (a), the State in which the worker is usually based or
- if no one State is identified by (a) or (b), the State in which the employer’s principal place of business in Australia is located.
Industry examples
Industry examples have been developed by all jurisdictions to show how cross border provisions can be applied to establish a worker’s State of connection.
See: State of Connection guideline
Apply tests in sequence
The test should be applied where circumstances indicate that the worker’s employment may be connected with another State. This may be where:
- the worker’s usual workplace is outside Victoria (question 3, Employer’s Claim Report)
- the injury/condition occurred outside Victoria (question 7, Employer’s Claim Report; question 2, Worker’s Claim Form)
- the worker or employer’s residential or postal address is outside Victoria (question 1, Employer’s Claim Report, question 1, Worker’s Claim Form)
- where the worker is employed in an industry which is known to routinely cross borders.
Process
Apply these tests in sequence to determine a worker’s State of connection.
It is important to note that these tests apply to a particular contract or term of employment for a worker.
| Test | Agent action |
|---|---|
| Usually works |
Determine if you can identify the state in which the worker usually works in that employment. See: Where worker usually works If so, this is the worker’s state of connection. Otherwise proceed to the next test. |
| Usually based |
Determine if you can identify the state in which the worker is usually based for that employment. See: Where the worker is usually based If so, this is the worker’s state of connection. Otherwise proceed to the next test. |
| Employer's principal place of business |
Determine if you can identify the state in which the employer’s principal place of business in Australia is located. See: Employer’s principal place of business If so, this is the worker’s state of connection. Otherwise, if the worker is not entitled to compensation for the same matter under laws of a place outside Australia, the worker’s employment is connected with Victoria if the worker is in Victoria when their injury occurred. |
If no State of connection can be determined
If no State of connection can be determined for a worker and the worker is not entitled to compensation for the same matter under the laws of a place outside Australia, the worker’s employment is connected with Victoria if the worker is in Victoria when their injury occurred.
Workers on ships
Workers on ships are treated in the same way as other workers. However, if no State or no one State can be identified by using the State of connection tests, a worker’s employment is, while on a ship, connected with the State in which the ship is registered or, where the ship is registered in multiple States, the State in which the ship most recently became registered.
Compensation under the Victorian law does not apply to a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.
'Ship' means any kind of vessel used in navigation by water, however propelled or moved and includes:
- a barge, lighter, or other floating vessel and
- an air-cushion vehicles, or other similar craft
used wholly or primarily in navigation by water.
2.1.5.2 Where worker usually works
A worker may 'usually work' in more than one State. Consider the following factors and examples to decide where a worker usually works:
- the terms of any contract of employment between the employer and the worker
- where the worker actually performs work rather than where the work is required to be performed
- the worker's history of employment with the employer over the previous 12 months (if applicable) and the proposed future working arrangements between the employer and the worker
- the location or locations in which the worker works in a habitual or regular manner. The worker's State of connection is not simply State or Territory where the worker spends the majority or greatest portion of their working time for the employer.
The cross border provisions allow a worker to work temporarily for the same employer under the same term or contract of employment, outside their State of connection for up to six months without the need to re-consider where the worker 'usually works'.
More than six months outside their State
When a worker has worked for more than six months outside their State of connection, the employer must review workers’ insurance arrangements relating to that worker. At this point in time, the employer may determine that:
- the arrangement remains temporary (the employer should keep copies of documentation supporting the temporary status of the arrangement) or
- the arrangement is now permanent and the worker has a new State of connection (the employer must take out insurance coverage for that worker in the new State of connection).
2.1.5.3 Where the worker is usually based
There may be cases where the worker works comparable periods of time across a number of States. In these cases the worker’s employment is connected to the State where they are 'usually based' in relation to the contract or term of employment.
Indications
The following may indicate the State in which the worker is 'usually based':
- the work location specified in a worker’s contract of employment
- the location the worker will attend routinely during the term or contract of employment to receive directions or collect materials, equipment or instructions in relation to the work
- the location the worker reports to in relation to the work
- the location from which the worker’s wages are paid.
2.1.5.4 Employer's principal place of business
There may be cases where the worker works equally across a number of States but is not usually based in any particular State. In these cases the worker’s employment is connected to the State in which the employer’s principal place of business in Australia is located.
The following may indicate where an employer’s principal place of business is located:
- the address registered on the Australian Business Register in connection with the employer’s Australian Business Number (ABN Australian Business Number)
- if the employer is not registered for an ABN, the State registered on the Australian Securities and Investments Commission’s National Names index, as being the jurisdiction in which the employer’s business or trade is carried out
- if the employer is not registered for an ABN or on the National Names Index, the employer’s business mailing address.
2.1.5.5 Compensation for workers injured outside Australia
If the worker is injured outside Australia in circumstances which, had the injury occurred in Victoria, would have entitled the worker or their dependants to compensation, then they are entitled to compensation under the legislation if either of the following apply:
- the employer resides or has a place of business in Victoria
- the worker is engaged in Victoria.
The wording 'engaged in Victoria' relates to the place where the contract of employment is made. Contracts can be written or oral.
The same provisions for entitlement to compensation are made for employees of the Crown and administrative units or any public statutory body constituted by any law of Victoria.
An employee of these organisations who is directed by the organisation to work for or under the direction of any person (whether within or outside Australia) is deemed to continue to be employed by the Crown, administrative unit or public statutory body.
Exemption to entitlement to compensation
The worker is not entitled to compensation if either of the following applies:
- the worker has never resided in Australia
- the worker has ceased to live in Australia at the time injury occurred.
2.1.5.6 Person not to be compensated twice for the same injury
Compensation under this legislation is not payable in respect of an injury to the extent that a worker has received compensation for the same injury under the laws of a place other than Victoria (whether within or outside Australia).
If a worker who received compensation under the legislation in Victoria subsequently receives compensation under the laws of a place other than Victoria (whether within or outside Australia) for the same injury, the lesser of the following amounts may be recovered from the worker:
- the amount of compensation paid under the Victorian worker's compensation legislation
- the amount of compensation received under the laws of the place other than Victoria.
2.1.5.7 Entitlement to damages outside Victoria
Where a worker has a right of action under the law of any place outside Victoria (whether within or outside Australia) and:
- damages have not been paid or recovered and
- judgment for damages has not been given or entered
in circumstances which would otherwise have entitled the worker or their dependents to compensation under the legislation, the worker or their dependants are entitled to compensation under the legislation as if there were no right of action under the law of any place outside Victoria (whether within or outside Australia).
Exemptions from claiming damages in Victoria
A worker or their dependants are not entitled to claim compensation under the legislation, if in respect of the injury, under a law of any place outside Victoria (whether within or outside Australia):
- the worker has received any amount of damages
- judgement for damages has been given or entered
- any payment into court has been accepted
- there has been a settlement A lump sum payment that replaces an injured worker's right to ongoing weekly compensation. or compromise of any claim
- any action for damages is pending.
If the worker is making a claim somewhere else
If an Agent identifies that a worker is pursuing damages under the law of any place outside Victoria (whether within or outside Australia), the Agent must write to the:
- worker
- defendant/s to the damages action (other parties).
The letter must advise of the Agent’s interests, contain the amount of compensation paid to date and the intention to seek recovery out of any settlement or payment.
Agents must request a copy of the claim or proceedings issued outside Victoria which shows the:
- date of injury
- nature of injury
- stated cause of injury
- period for which compensation is being claimed.
Recovery of costs
If a worker receives compensation under the legislation and subsequently under the law of any place outside Victoria (whether within or outside Australia):
- obtains damages
- obtains an award of damages
- accepts a payment into court
- settles or compromises a claim.
The Agent is entitled to recover the lesser of one of the following:
- amount of compensation paid under the legislation
- an amount equal to the damages or payment obtained or made, settled or compromised under the law of any other place outside Victoria (whether within or outside Australia).
If the worker's claim outside Victoria is successful
On settlement or payment of the worker’s claim/action outside Victoria (whether within or outside Australia), Agents must write to the worker or their representative requesting recovery of compensation.
See: Recoveries
Disputed recovery
Any dispute about the Agent's recovery of costs must be determined by a court of competent jurisdiction.
Presumption of same injury
If a worker has started proceedings or has recovered an amount of damages in respect of an injury under the law of a place outside Victoria (whether within or outside Australia), it is presumed to be for the same injury for which they are claiming compensation under the legislation unless the worker produces satisfactory evidence to the contrary.
Court determinations
Where a Court of Victoria, a designated Court or a Court hearing proceedings on a claim for damages, determines the State with which a worker’s is employment is connected, the State so determined is recognised by the legislation as being the State with which the worker’s employment is connected.