I am on WorkCover and my employer has proposed to transfer me to another position with reduced responsibilities and pay. What can I do?

WorkCover provides financial support to an employee who has been injured at work to help them recover and return to work. WorkCover insurance may cover replacement of lost income and medical and rehabilitation treatment costs.

How are employees paid under WorkCover?

WorkSafe Victoria makes weekly payments while an employee is unable to perform their usual hours due to workplace injury. These weekly payments do not substitute an employee’s wage. Weekly payments are calculated with reference to the employee’s pre-injury average weekly earnings and whether the employee has some or no work capacity.

With regard to questions about workers compensation, you should contact your state’s health and safety regulator.

What can an employer do?

If you have been injured and choose to return to work, whether or not your employer can transfer you to another position with reduced responsibilities and pay depends on whether you have the capacity to perform your pre-injury role.

If you do not have the capacity to perform your pre-injury role, then your employer can transfer you to a position with reduced responsibilities however it must maintain your pay. In fact, your employer is under an obligation to provide you with other suitable employment as long as you have some capacity for work and this obligation continues for 52 weeks.

If you recover and are able to return to your usual job during this 52 week period, your employer is required to reinstate you to your pre-injury role or provide you with equivalent employment. Alternatively, your employer may terminate your employment after 52 weeks if it can no longer provide you with suitable employment for your work capacity.

What can’t your employer do?

An employer cannot terminate you because of your WorkCover claim. If your employer has done this, it has breached section 340 of the Fair Work Act 2009 (Cth) and you are entitled to make an application to the Fair Work Commission alleging breach. That is, your employer has taken adverse action against you in response to your exercise of a workplace right, namely, making a WorkCover claim and receiving compensation for an injury arising out of employment.

Further, if your employer attempts to alter your role without genuine reason it could be a breach of section 340 of the Fair Work Act 2009 (Cth) insofar as your employer has taken adverse action for a prohibited reason.