In the past decade Australia has seen an increasing casualisation of its workforce. It’s estimated up to three million Australians now work in a casual capacity.
A common form of this sort of employment is where an employer sources workers through a recruitment or labour hire firm. These workers could be employed on a part time, casual or fixed term basis, and may be skilled or semi-skilled. Industries from construction and IT, to health, manufacturing, mining, cleaning, transport, technology, banking and financial services all use labour hire firms in today’s economy.
Many employers – known as the ‘host’ employer – prefer this way or finding workers because it offers them the ability to quickly scale up or scale down their workforce, avoiding many of the commitments that comes with engaging a worker on a full- or part-time employment basis.
One of the consequences of this trend, however, is that workers employed through labour hire or recruitment firms are at greater risk of injury. A Queensland parliamentary inquiry into labour hire practices in 2016 found this increased risk resulted from labour hire workers:
- Receiving limited training and supervision from the host employer;
- being asked to do work for which they were not suited;
- failing to alert employers to workplace health and safety issues because they feared losing their job;
- the limited capacity of labour hire providers to exercise supervision and monitoring of their employees’ work activities; and
- being unsure of who had responsibility for safe work systems, assessing work suitability, and devising and implementing safe work systems between the labour hire firm and the host employer.
This raises the question of who a worker can take action against if they are injured at work? Is it the labour hire/recruitment company, or the host employer?
Who has responsibility for a worker employed through labour hire?
Coming into effect in Queensland in 2018 was the Labour Hire Licensing Act 2017 (Qld) (‘the Act’), designed to ensure a higher standard of compliance with workplace laws and regulations by requiring labour hire firms to be licensed.
One of the requirements to gain a licence is that the labour hire company have appropriate workers’ compensation insurance. Part of applying for a licence under the Act includes providing the firm’s WorkCover Queensland accident insurance policy number.
In nearly all situations, the labour hire company is considered the ‘employer’ of the worker and therefore, its workers’ compensation insurance policy will be claimed against if one of its employees is injured while doing work for the host employer.
In some cases the labour hire company’s insurer may later take action against the worker’s compensation insurer of the host employer to recover the amount paid under a claim. Every Queensland workplace is required to have workers’ compensation insurance, which operates on a no-fault basis and will pay the worker lost wages and medical expenses until they can recover.
Claims under the Personal Injuries Proceedings Act (PIPA)
There is a further option to make a claim for compensation if you’re injured while on a placement with a host employer. Queensland’s Personal Injuries Proceedings Act 2002 (‘PIPA’) allows for personal injury claims sustained in the workplace by labour hire company employees against host employers, where the injury is the result of wrongful or negligent actions by that employer.
This claim is separate to any workers’ compensation you’re entitled to make under the Workers’ Compensation & Rehabilitation Act 2003.
It should be noted that compensation payouts and the awarding of legal costs in any PIPA claim are restricted by Queensland’s Civil Liability Act 2003. Nevertheless, a successful PIPA claim may see you compensated for medical and out-of-pocket expenses, loss of wages, pain and suffering, and any rehabilitation, care or assistance costs incurred as a result of the injury.
What about common law compensation claims?
Where you believe your injury is the result of negligence by an employer or one of its employees, in addition to eligibility for workers’ compensation you may also be able to make a common law personal injury claim.
Depending on the situation, this claim may be made against either the labour hire firm or the host employer you’ve been hired out to. These kind of claims can become complex. In order to demonstrate that another person’s negligence caused your injury, you need to show that they first owed you a duty of care and that they breached that duty, leading to your harm.
Did the host employer (or an employee of that employer) owe you a duty of care? If not, does the labour hire firm who placed you with the host employer owe you a duty of care which they breached? Should they have taken more action, for example, to ensure you were placed in a safe working environment?
Working out whether a party has been negligent involves a detailed process of investigation. Medical reports and expert opinion about the causes of your injury, whether the risks were reasonably foreseeable and should have been mitigated, all need to be gathered by your expert legal representatives.
These can become complicated legal questions and require the services of specialist compensation professionals such as Lifestyle Injury Lawyers. A successful common law compensation claim can see you compensated for medical treatment and rehabilitation, lost wages through the payment of weekly benefits, and a lump sum in the case you are permanently impaired and unable to work (or work in that industry) again. The payable damages could be a substantial amount of money.
Call us for advice
As with any compensation claim, time limits apply in which to initiate a claim. In many of these situations, a mediation process leading to a negotiated settlement will be the way to resolve the claim. In other cases, litigation through the court may be necessary.
In any of these circumstances, Lifestyle Injury Lawyers will guide you through the claim process. Compensation is our bread-and-butter specialty, and have represented numerous clients who’ve been injured while employed by a labour hire or recruitment firm.