Which States’ Workers’ Compensation Scheme applies if I am injured outside of my home State?

It is commonplace for employees to be required to travel interstate as part of their work.  As a result, you may have been injured in the course of your employment whilst outside of your home State. Such injury typically gives rise to Workers’ Compensation entitlements, however, the identification of the relevant State law can be problematic in such circumstances.

Fortunately, each of the eight Australian States and Territories have enacted cross-border provisions into their Worker’s Compensation legislation to help resolve jurisdictional issues. The following provisions under each States’ Worker’s Compensation laws set out the mechanisms for determining when an injury outside of that State/Territory can be compensable under its legislation:

• ACT: Section 36B of the Workers’ Compensation Act 1951
• New South Wales: Section 9AA of the Workers’ Compensation Act 1987
• Northern Territory: Section 53AA of the Return to Work Act
• Queensland: Section 113 of the Workers’ Compensation and Rehabilitation Act 2003
• South Australia: Section 6 of the Workers Rehabilitation and Compensation Act 1986
• Tasmania: Section 31A of the Workers Rehabilitation and Compensation Act 1988
• Victoria: Section 80 of the Accident Compensation Act 1985
• Western Australia: Section 20 of the Workers Compensation and Injury Management Act 1981

The combined effect of these provisions form a national model for cross-border provisions which gives rise to a sequential 5-part test can be applied to determine which State Workers’ Compensation you are covered by:

1. In which State/Territory do you usually work in your employment?
2. If no single State/Territory is identified by Test 1, what is the State/Territory in which you are usually based for the purposes of your employment?
3. If no single State/Territory is identified by Test 1 or Test 2, what is the State/Territory in which your employer’s principal place of business in Australia is located?
4. If you are working on a ship and no single State/Territory is identified by Test 1, Test 2 or Test 3, in which State/Territory was the ship most recently registered?
5. If no single State/Territory is identified by Tests 1, 2, 3 or 4 and there is no place outside Australia where you are entitled to compensation for the same matter, in which State/Territory were you injured in the course of your employment?

The first of the above five questions which is answerable determines the State/Territory jurisdiction for any Workers’ Compensation claim. It is important to note that compensation for a workplace injury cannot be claimed under multiple State Workers’ Compensation schemes.

An employer therefore cannot escape its obligation to compensate you for a workplace injury simply because the injury occurred in another State.