If you were injured while placed with a host business or working as a contractor, more than one entity may owe you a duty, and working out which one to claim against depends on how the arrangement was structured.
If you were injured while placed with a host business through a labour hire agency, or while working as a contractor, the entity you claim against is not always your immediate employer. It depends on who employed you for workers compensation purposes, who controlled the work and the site, and whether a separate business also owed you a duty of care. This is one of the more confused areas of workplace injury law, because more than one party can be involved, and each state scheme treats labour hire and contracting arrangements a little differently.
Why the structure matters
A labour hire arrangement usually has three parties. You have an employment relationship with the labour hire agency, which pays your wages and generally holds the workers compensation policy. The host business, sometimes called the host employer, directs your day to day work and controls the site where the injury happened. A workers compensation claim is normally lodged against the labour hire agency as your employer, but a further common law claim for negligence can sometimes be brought against the host business, because it is the party that controlled the conditions on site.
Contracting arrangements raise a different question. If you are genuinely running your own business, providing your own tools, invoicing for the work, and controlling how the job is done, you are usually treated as an independent contractor rather than an employee. Independent contractors are not automatically covered by workers compensation schemes. Some state schemes do treat certain categories of contractor as deemed workers for compensation purposes, depending on factors such as how much of the work is personal labour and whether the contractor engages others to help. Whether that applies to your situation depends closely on the facts, so it is not something to assume either way.
Working out who owes you a duty
Regardless of how the paperwork is structured, several parties can owe a duty of care to a person working on a site.
- The entity that pays your wages, because an employer owes a duty to provide a safe system of work.
- The host business or principal contractor that controls the site, because an occupier and a business managing works owe a duty to everyone lawfully on the premises, including workers who are not directly employed by them.
- Another contractor working on the same site, if their conduct created the hazard that caused your injury.
A single incident can involve more than one of these duties at once. For example, a labour hire worker injured by faulty equipment on a construction site might have a workers compensation claim against the labour hire agency, and a separate common law claim against the site controller if the equipment was not properly maintained or the hazard was not managed.
Comparing the common arrangements
| Your arrangement | Who workers compensation is usually claimed against | Who else may owe a duty |
|---|---|---|
| Employed directly by the business where you were injured | That employer | The employer, and potentially another contractor whose work created the hazard |
| Placed by a labour hire agency with a host business | The labour hire agency, as your employer | The host business, for how it controlled the site |
| Genuine independent contractor | Not automatically covered, unless deemed a worker under the relevant scheme | The business that controlled the site or created the hazard, through a public liability style claim |
| Subcontractor engaged by a principal contractor | Depends on your own employment structure | The principal contractor, for site control and coordination of the work |
Why getting this right matters
Naming the wrong party, or only pursuing one avenue when a second one is available, can mean missing out on an entitlement altogether. Workers compensation and common law or public liability claims also run on different clocks, and a certain time frame applies to notifying an incident and to starting each type of claim. Our note on time limits for personal injury claims in Australia explains how these time limits generally work, and why they are worth checking early rather than after a claim has already been lodged in one direction.
It also matters because evidence about who controlled the site, who supervised the work, and who was responsible for the hazard tends to be easiest to gather soon after the incident. Photographs, incident reports, and the names of anyone who witnessed what happened all become harder to obtain as time passes and memories fade.
Working out which arrangement applied
Where a person was injured while working through a labour hire agency, as a contractor, or on a site with more than one business present, the arrangement itself is worth examining before assuming only one party was involved. The paperwork describing the engagement, the entity that paid the wages, and the business that controlled the site can each point in a different direction, and the answer is not always the one the job title suggests.
Because different time limits apply to the different avenues, and because the evidence about site control fades quickly, the position tends to be clearer when it is worked out early rather than after one path has already been taken. Our note on time limits for personal injury claims sets out how those limits generally work.