The Legal Concept of Work-Related Injury and Disease in Australian OHS and Workers' Compensation Systems

By Alan Clayton, Richard Johnstone and Sonya Sceats

An analysis of the concept of "work-relatedness" in the Australian OHS and Workers' Compensation systems.

As the forms of work relationships become more complex, more pressure is brought to bear on the general "contract of employment" as the pivotal factor in determining workers' compensation and OHS questions, and the question of "work-relatedness is challenged by the new approaches.

It is a crucial element in circumscribing the limits of protection afforded to workers under the preventative statutes, and is a threshold element that has to be satisfied before an injured or ill worker can recover statutory compensation.

The different regimes of OHS and workers' compensation have differing criteria for assessing work relatedness. This article explores the concept in relation to the core criteria of workers' comp. coverage, those of "worker", injury/disease and the requisite employment connection between the claimants employment and the injury or disease. In respect of OHS systems, the work-relatedness concept is explored both in regard to reporting requirements and in respect of general duties and regulations that form the backbone of Robens-style OHS regulation.

Employers have been attempting to structure work relationships to avoid the "contract of employment". Many types of worker protection legislation revolve around the contract of employment. The only legislative response to to this "fake self-employment" has been in Victoria. The rise of labour hire and the decline in full time, permanent employment makes it more necessary that the various jurisdictions around Australia address these issues. A move to a New Zealand style comprehensive accident compensation scheme may be a means to address someof the problems.

(Australian Journal of Labour Law; vol. 15, no. 2, September 2002)