The COVID-19 pandemic has resulted in many businesses allowing their employees to continue to conduct their employment duties outside of the normal office environment, and instead from remote locations such as their employee’s home. The increased use of technology, such as remote desktops, and communication platforms such as Teams and Zoom, and the utilisation of email, has meant that many workers no longer need to attend the physical office of their employer.
Many employees who used to physically attend work in Canberra, may now work from their homes in either the ACT, or the surrounding NSW suburbs and regions. If those employees are public servants, not much may turn on whether they work remotely in either the ACT or NSW.
However, there will be many private sector businesses in the ACT where their employees reside and now work from nearby NSW locations. In these circumstances, an interesting question arises about whether the employer has workers compensation insurance coverage if that employee is injured whilst working from home. This is important, because the ACT and NSW have separate workers compensation schemes.
For private sector workers in the ACT, Part 4.2A of the Workers Compensation Act 1951 sets out a cascading series of questions which, when answered in the required order, assist with the determination of whether the worker’s employment is sufficiently connected with the ACT. This is known as determining the State of Connection, and it determines whether an ACT or a NSW policy of workers compensation insurance is required.
Where the employee usually works?
To answer this question, it is necessary to consider factors including geographically where the employee has been performing the work (ACT and/or NSW), where the employee and the employer intend for the employee to work in the future, and the contractual terms. If short-term work arrangements of up to six months are in place, these do not necessarily need to be considered.
If the above test does not confirm the State of Connection, then the next question is considered.
Where is the employee usually based?
Responding to this question involves consideration of whether the employee is provided with a place where they are expected to work from, or where they receive daily instructions or materials from, or they report for administration and human resource matters.
If this question does not confirm the State of Connection, then consideration must be given to the next question.
Where is the employer’s principal place of business?
This question should confirm whether the ACT policy will respond to the injured employee’s claim. If it does not, then the next question must be answered.
What if the above questions do not decide the State of Connection?
If the employee is working on a ship, and the above answers have not determined the State of Connection, this will be determined by where the ship is or most recently became registered.
The final question to be answered to determine the State of Connection, is which in State or Territory the injury or illness was suffered.
Will my employees have workers compensation coverage?
There can be serious financial consequences for business if there is not an appropriate workers compensation policy in place when an employee is injured or develops a work-related illness.
Now that most Covid-19 business restrictions have been lifted, many businesses are considering whether and when they will require employees to return to the office, or whether they will allow their employees to continue working from home. Each business will arrive at their own conclusions about working from home arrangements.
However, it is important for business owners who allow their employees to continue to work from home, to ensure that they are aware where the work is being performed, and that they have ensured that they have a policy of workers compensation insurance (whether ACT or NSW) which will respond if the employee is injured or becomes ill.
How Can We Help?
Contact the Personal Injury team at Snedden Hall & Gallop to see how we can assist you with any personal injury matter on 02 6285 8000 or by email.