New South Wales Consolidated Acts New South Wales Consolidated ActsEditorial note--: Section 4 provides that, in the Workers Compensation Acts--
"worker" means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include--(a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906 , or(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or(d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978 ) while--Section 5 provides that the provisions of this Schedule (which deem certain classes of persons to be workers) have effect.(i) participating in an authorised activity (within the meaning of that Act) of that organisation, or(ii) engaged in training or preparing himself or herself with a view to so participating, or(iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged,if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things.
If
the services of a worker are temporarily lent or let on hire to another person
(
"the labour buyer" ) by the person with whom the worker has entered into a
contract of service or a training contract (
"the labour hirer" ), the labour hirer is, for the purposes of this Act, taken
to continue to be the employer of the worker while the worker is working for
the labour buyer.
(1) If--(a) a person (
"the principal" ) contracts with another person to perform any work as an outworker, and(b) the outworker neither employs any worker, nor subcontracts with any person, to perform any of the work for the profit of the outworker,the outworker is, for the purposes of this Act, taken to be a worker employed by the principal.
(2) In this clause--
"outworker" means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale--(a) in the person's own home, or(b) on other premises not under the control or management of the person who gave out the articles or materials.
(cf former Sch 1 cl 2)
(1) Where a contract--(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), oris made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(3) A person excluded from the definition of
"worker" in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.
(1) In this clause--
"labour hire services contract" means a contract or arrangement (not being a contract of service or a training contract) under which a person is provided with services to facilitate the performance of work by the person, such as the following services--(a) services for finding work for the person,(b) services for payment for work performed by the person,(c) services for insurance coverage in connection with any such work.
(2) If--(a) a person (
"a labour hire agency" ) under a labour hire services contract with another person (
"a contractor" ) arranges for the contractor to perform work for a third person (
"the host employer" ), and(b) the work performed is not incidental to a trade or business regularly carried on by the contractor in the contractor's own name or under a business or firm name, and(c) the contractor neither employs any worker, nor subcontracts with any person, to perform any of that work, and(d) the labour hire agency provides services to the contractor under the labour hire services contract during the performance of that work,the contractor is, for the purposes of this Act, taken to be a worker employed by the labour hire agency while performing that work.
(3) For the avoidance of doubt, this clause applies--(a) where a labour hire agency and a host employer are related bodies corporate, and(b) in addition to any other provisions of this Act relating to the employment of workers.
(cf former Sch 1 cl 3)
(1) This clause applies to the following work--(a) The work of supplying timber, if the timber is obtained, or is to be obtained, from trees felled, or to be felled, by a contractor (whether the trees are the property of the principal or the contractor or any other person).(b) The work of felling or ringbarking trees, or cutting scrub, or hauling or loading timber.(c) The work of clearing land of stumps or logs.(d) The work of cutting sugar cane.(e) The work of erecting, constructing or demolishing or assisting in the erection, construction or demolition of--(i) fences, or(ii) yards or enclosures for horses, cattle, sheep or other animals,on farms, orchards, vineyards or agricultural or pastoral holdings.(f) All classes of work normally carried out or performed by derrick operators in or in connection with the transport of sugar cane to a mill.(g) Any other class of work prescribed by the regulations.
(2) If--(a) any person (in this clause referred to as
"the principal" ) in the course of, or for the purposes of, the person's trade or business enters into a contract, agreement or arrangement with any other person (in this clause referred to as
"the contractor" ) under which the contractor agrees to carry out work to which this clause applies, and(b) the contractor--the contractor and any worker so employed by the contractor are, for the purposes of this Act, taken to be workers employed by the principal, and a worker so employed by the contractor is, for the purposes of this Act, other than this clause, taken not to be a worker employed by the contractor.(i) does not either sublet any part of the work to be carried out, or employ a worker, or(ii) (although either subletting part of the work or employing a worker) actually performs some part of the work himself or herself,
(3) If the principal has given or offered the contractor the option to or the opportunity to so supply timber if the contractor so desires, then, for the purposes of this clause, the contractor is taken to have agreed to supply timber.
(4) This clause does not apply to or in respect of a contract, agreement or arrangement to haul or load timber if the timber has been subjected to a manufacturing process as defined by the Factories, Shops and Industries Act 1962 in a factory as defined by that Act.
(5) All the principals by whom a person is taken to be employed under this clause at the time of an injury to the person are liable to contribute to any compensation payable under this Act in respect of the injury in such proportion as, in default of agreement, the Commission determines.
(6) For the purposes of this Act, a notice of injury given by a person employed by the contractor is taken to be given to the employer if it is given either to the contractor or the principal.
(7) The contractor must, on request, inform a person employed by the contractor of the name and address of the principal.
(8) In this clause--
"timber" includes sleepers, piles, poles and logs.
(cf former Sch 1 cl 4)
(1) If any person (in this clause referred to as
"the principal" ) advertises or otherwise notifies that he or she will accept timber delivered or supplied in accordance with the advertisement or notification, any person who gives notice to the principal that he or she will deliver or supply the timber or any part of the timber is, for the purposes of this Act, taken to be a worker employed by the principal.
(2) Notice of intention to deliver or supply timber--(a) must indicate the nature of the actual work to be undertaken, and(b) must be given prior to injury.
(3) All the principals by whom a person is taken to be employed under this clause at the time of an injury to the person are liable to contribute to any compensation payable under this Act in respect of the injury in such proportion as, in default of agreement, the Commission determines.
(4) In this clause--
"timber" includes sleepers, piles, poles and logs.
(cf former Sch 1 cl 5)
(1) A salesperson, canvasser, collector or other person paid wholly or partly by commission is, for the purposes of this Act, taken to be a worker in the employment of the person by whom the commission is payable, unless the commission is received for or in connection with work incidental to a trade or business regularly carried on by the salesperson, canvasser, collector or other person or by a firm of which he or she is a member.
(2) All the employers who engaged any such salesperson, canvasser, collector or other person at the time of an injury to the salesperson, canvasser, collector or other person are liable to contribute to any compensation payable under this Act in respect of the injury in such proportion as, in default of agreement, the Commission determines.
(cf former Sch 1 cl 6)
A tributer working in connection with any mine (as defined in the
Mining Act 1992 ) and also any workers employed by any such tributer are, for
the purposes of this Act, taken to be workers employed by the person with whom
the tribute agreement was made by the tributer.
(cf former Sch 1 cl 7)
Any person usually employed about a mine or in connection with the operations
of a mine whose remuneration is provided wholly or partly by the workers
employed at the mine is, for the purposes of this Act, taken to be a worker
employed by the person by or for whom the mine is being worked.
(cf former Sch 1 cl 8)
(1) For the purposes of this Act--(a) a member of the New South Wales Mines Rescue Brigade engaged in mine rescue work, or undergoing training, in accordance with Part 4 of the Coal Industry Act 2001 is, while so engaged or undergoing training, taken to be a worker employed by the mines rescue company, and(b) a place at which such a member is so engaged or undergoing training is taken to be a place at which the member is employed.
(2) A member of the New South Wales Mines Rescue Brigade who receives an injury while journeying between the place from which the member was required to attend for the purpose of engaging in mine rescue work or of undergoing training and a place referred to in subclause (1) (b) is, if the journeying was exclusively and genuinely for that purpose, entitled to receive compensation in accordance with this Act from the mines rescue company.
(3) In this clause,
"mines rescue company" means the mines rescue company within the meaning of the Coal Industry Act 2001 .
(cf former Sch 1 cl 9)
(1) A person who--(a) is engaged to ride a horse for fee or reward at a meeting for horse racing conducted or held by a racing club or association, or(b) drives a horse at a meeting for harness racing conducted or held by a racing club or association and at which betting is allowed, or(c) is engaged in riding work in connection with horse racing (but not harness racing) on the racecourse or other premises of a racing club or association,is, for the purposes of this Act, taken to be a worker employed by the racing club or association.
(2) Subclause (1) does not apply to a racing club or association having its headquarters in a town with a population not exceeding 3,000 people if--(a) the meetings of the racing club or association are conducted or held within a radius of 8 kilometres from the town, and(b) the profits derived from the operations of the racing club or association are applied for charitable purposes.
(3) For the purpose of assessing the compensation payable to a person to whom this clause applies, the "average weekly earnings" of the person are--(a) to be calculated in such manner (if any) as may be prescribed by the regulations, or(b) if the person was not working under contract of service--to be calculated in such manner as the Commission considers to be reasonable in the circumstances.
(4) The regulations may make provision for or with respect to the exemption of any class of persons from the operation of subclause (1) (b).
(cf former
Sch 1 cl 10)
A person engaged in plying for hire with any vehicle or vessel, the use of
which is obtained by that person under a contract of bailment (other than a
hire purchase agreement), in consideration of the payment of a fixed sum, or a
share in the earnings or otherwise, is, for the purposes of this Act, taken to
be a worker employed by the person from whom the use of the vehicle or vessel
is so obtained.
(cf former Sch 1 cl 11)
A person (not being a person excluded from being a worker by reason of
paragraph (d) of the definition of
"worker" in section 4 (1))--
(a) whose employment is of a casual nature, and
(b) who is employed otherwise than for the purposes of his or her employer's trade or business, and
(c) who is employed for the purposes of any game or recreation, and
(d) who is engaged or paid through a club,is, for the purposes of this Act, taken to be a worker employed by the club.
(cf former Sch 1 cl 12)
Any person employed in connection with a pastoral or agricultural occupation,
as cook, cook's help or hut-keeper, whose remuneration is provided wholly or
partly by the employees in any such occupation is, for the purposes of this
Act, taken to be a worker employed by the person by or for whom the work in
any such occupation is undertaken.
(cf former Sch 1 cl 13)
(1) A person who (without remuneration or reward)--(a) voluntarily and without obligation engages in fighting a bush fire in any fire district constituted under the Fire and Rescue NSW Act 1989 with the consent of or under the authority and supervision of or in co-operation with--(i) any retained fire brigade within the meaning of that Act, or(ii) the Commissioner or any officer of Fire and Rescue NSW or any member of a permanent fire brigade, or(b) is undergoing training for the purposes of fighting bush fires in those circumstances,is, for the purposes of this Act, taken to be a worker employed in Fire and Rescue NSW.
(2) For the purposes of assessing the compensation payable to a person to whom this clause applies, the "average weekly earnings" of the person are--(a) if the person was working under a contract of service immediately before fighting the bush fire--to be computed according to the earnings of the person under that contract of employment, or(b) if the person was not working under a contract of service immediately before fighting the bush fire--to be such amount as the Commission considers to be reasonable in the circumstances.
(3) In this clause--
"bush fire" means a fire burning in grass, bush, scrub or timber and any fire arising from such a fire.
"fighting" , in relation to a bush fire, includes any reasonable act or operation performed by the person concerned at or about the scene of or in connection with a bush fire, which is necessary for, directed towards or incidental to the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire.
(cf former Sch 1 cl 14)
Where any person is ordinarily engaged in any employment in connection with
which persons customarily attend certain prearranged places at which employers
select and engage persons for employment, any such person is--
(a) while in attendance at any such place of pick-up for the purpose of being so selected, or
(b) while travelling thereto from his or her place of abode, or
(c) where the person is not so selected, while travelling from such place of pick-up to his or her place of abode,taken to be a worker employed by the employer who last employed the person in his or her customary employment.
(cf former Sch 1 cl 15)
(1) A person engaged for fee or reward to take part--(a) as a boxer, wrestler or referee in any public boxing or wrestling contest in a stadium or place to which the public is admitted on payment of a fee or charge, or(b) as a boxer, wrestler or referee in any boxing or wrestling contest in or on premises subject to a club licence under the Liquor Act 2007 , or(c) as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge, or(d) as an entertainer in any performance in or on premises subject to a club licence under the Liquor Act 2007 ,is, for the purposes of this Act, taken to be a worker employed by the person conducting or holding the contest or public or other performance.
(2) A person who takes part in a genuine amateur contest or performance conducted or held by a person who holds or is taken to hold an authority granted under the Charitable Fundraising Act 1991 , is not, for the purposes of this clause, taken to be engaged for fee or reward only because a trophy or certificate is offered or awarded as a prize in the contest or performance.
(3) A person excluded from being a worker because of paragraph (d) of the definition of
"worker" in section 4 (1) is taken not to be a person referred to in subclause (1) (c) or (d).
(4) If 2 or more persons conduct or hold a contest or public or other performance, those persons are liable to contribute to any compensation payable under this Act for the injury in such proportion as, in default of agreement, the Commission determines.
(cf former Sch 1 cl 16)
(1) A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.
(2) For the purposes of assessing the compensation payable to a person to whom this clause applies, the "average weekly earnings" of the person are--(a) if the person was working under a contract of service immediately before engaging in the ambulance work--to be computed according to the earnings of the person under that contract of employment, or(b) if the person was not working under a contract of service immediately before engaging in the ambulance work--to be such amount as the Commission considers to be reasonable in the circumstances.
(3) In this clause,
"ambulance work" means work in or in connection with the rendering of first aid to, or the transport of, sick or injured persons.
(cf former Sch 1 cl 17)
(1) The regulations may declare that persons within a specified class are ministers of religion of a specified religious body or organisation.
(2) A person within such a class is, for the purposes of this Act, taken to be a worker employed by a person specified in the regulation as the employer of persons within that class.
(3) A regulation relating to a religious body or organisation may not be made except at the request of that body or organisation.
(4) An order under section 6 (14E) of the former 1926 Act, continued in force by clause 17 of Schedule 1 to the 1987 Act and in force immediately before the commencement of this clause has effect as if it were a regulation under this clause (but may be revoked by any such regulation).
(cf former Sch 1 cl 17A)
(1) For the purposes of this Act, if a policy of insurance covers a minister of religion, that minister of religion is taken to be a worker and the person insured under the policy is taken to be the minister's employer.
(2) A minister of religion is considered to be covered by a policy of insurance if the policy provides (whether on its own terms or in some other document recognised by or referred to in the policy) that the coverage provided by the policy extends to the minister or to ministers of a class of which that minister is a member.
(3) A religious body or organisation, and any official of the body or organisation, is taken to have an insurable interest for the purpose of enabling the body, organisation or official to obtain and maintain in force a policy of insurance that covers a minister of religion of that body or organisation.
(4) If there is a conflict between the operation of this clause and clause 17 in respect of a particular minister of religion, this clause prevails.
(5) In this clause--
"official" of a religious body or organisation includes a person or body who or which holds an office or position, or exercises official functions, within the religious body or organisation.
(cf former Sch 1 cl 18)
(1) The regulations may--(a) declare a specified training program that includes the provision of workplace based training and involves the provision of Commonwealth funding to be a declared training program for the purposes of this clause, and(b) specify a class of payments as payments that are taken to be wages in respect of a participant in a declared training program.
(2) A person who is a participant in a declared training program is, for the purposes of this Act, taken to be a worker employed by the person who provides the workplace based training during any time that the person participates in the declared training program after the person who is to provide the workplace based training has entered into an agreement to provide the workplace based training.
(3) A payment that is declared by the regulations to be wages in respect of a participant in a declared training program is, for the purposes of this Act, taken to be the participant's wages in the employment by the person who provides the workplace based training.
(4) Except to the extent that the regulations may otherwise provide, this clause does not apply in respect of participation by a person, or an injury received by a participant, in a training program before the training program became a declared training program for the purposes of this clause.