Illegal Workers: Their Injury Claim Rights

A number of years ago, authorities launched an investigation into the labour hire industry after they became aware of a number of unscrupulous companies operating in north Queensland. Some of these companies were accused of exploiting seasonal workers across the fruit and vegetable industry, while others were found to be hosting illegal immigrants and using them as workers.

In September 2015 the Department of Immigration and Border Protection found 19 illegal workers operating on one farm. The safety of the worksite and worksite accommodation is also under investigation, with authorities finding 30-40 people living in appalling overcrowded share houses, and the vans and buses used to transport workers were unregistered and full of safety defects.

If an injury were to occur as a result of these appalling living conditions or unsafe modes of transport do these illegal workers have any rights to claim?

We aim to answer this – what are the injury claim rights of illegal workers?

People working in Australia have rights and protections at work. These cannot be taken away by contracts or agreements. This not only includes rights according to discrimination and pay but also to employers providing a safe work environment.

If a person is injured at work they are entitled to receive works compensation benefits paid under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) if:

  • They are a “worker” as recognised by the scheme; and
  • They suffer personal injury arising out of, or in the course of employment of the employment is a significant contributing factor to the injury.

A “worker” under Section 11 of the WCRA is defined as a person who –

  • Works under a contract; and
  • In relation to the work, is an employee for the purposes of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth).

In short a person who works under a contract of service is a worker. A contract of service is a standard employer and employee relationship where PAYG tax instalments are required to be withheld by their employer.

So for an illegal worker to be entitled to receive workers compensation benefits they firstly will need to be deemed a “worker” under the WRCA. This is a key factor in assessing the injury claim rights of illegal workers.

Despite the fact that an illegal worker enters into and works under the contract, and there is a requirement for tax to be withheld by the employer (regardless of whether this actually happens), as the illegal worker is not legally allowed to work in Australia any contract they enter into for work will be legally void. This then affects the injury claim rights of illegal workers – since they can’t be established as a “worker”.

So as their contract for service is void, they cannot work under it, and will therefore not be deemed to be a “worker” under the WRCA. Consequently they are therefore not entitled to receive any compensation. Further, as they are not entitled to receive compensation benefits they will be unable to bring a common law claim for damages for personal injury they suffer as a result of their employer’s negligence.

At the end of 2014 there were more than 62,000 people living illegally in Australia, although it is unclear how many of these people were working.

Unfortunately, for those who are working illegally in Australia these workers are not covered by compensation laws, and therefore leave themselves open to exploitation by unscrupulous employers. Perhaps they allow themselves to be subjected to such exploitation, and do not report this behaviour to the authorities, out of fear of being discovered as an illegal worker and risk being deported.

So, while there are many reasons that individuals work illegally in Australia, the injury claim rights of illegal workers are non-existent and put these individuals at risk – even when the injury or accident was the fault of the “employer”.

In 2015 the Australian government held a nationwide crackdown on exploitation of illegal workers and conducted 11 operations around the country, which led to the detaining of 32 workers in the country illegally and 6 workers in breach of their visa conditions.

The focus of the operations was to send a message to the small minority of employers that do not operate within the law that the Australian government will not put up with companies blatantly flouting the law and allowing overseas workers to work illegally in Australia.

If you have suffered an injury at work, or want to learn more about Work Injury Claims, you can find everything you need to know on our Workers’ Compensation Page.

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