Am I liable for injury on my property?
it is advisable that property and home owners obtain public liability insurance
Most people are aware that they may be held liable for injury sustained by a person coming onto their property.
It is advisable that property and home owners obtain public liability insurance to cover such an eventuality.
However, in some cases, public liability insurance will not assist you...
You may still be liable to pay compensation if you have public liability insurance
In some cases, you can still be found liable to pay compensation even if you have public liability insurance in respect to injury sustained by entrants to your home and property.
This is because public liability insurances do not normally apply if the person injured is considered an “employee” under the terms of the policy or generally at law.
It does not matter if you believed you had engaged your cleaner or gardener as an independent contractor and not as an employee – if the terms and conditions of their engagement indicate that they are an “employee” at law, then they will be considered as such.
People may possibly sue you for Common Law damages for their injury
If your domestic helper is determined to be an employee and is injured whilst undertaking their duties as engaged by you, whether at your home or whilst undertaking an errand on your behalf, then they will be entitled to bring a workers’ compensation claim and possibly sue you for Common Law damages for their injury.
Although WorkCover Queensland will meet such claims under workers’ compensation legislation in Queensland, WorkCover will have the right to then seek recovery of those claim costs from you, having devastating effects on you and your family.
In one example Defendant homeowners had to pay damages of $445,000+
For instance, in the case of Hancock v Johnson 213 QSC 341, the Court ordered that Defendant homeowners, the Johnsons, pay damages in the sum of $445,000 and legal costs to the widow of their gardener.
He had suffered a fatal injury when he fell through a metal cover into a hidden collection tank whilst gardening at the Defendant's' home.
If this occurred in your backyard, hopefully you would have public liability insurance to cover the claim against you like the Johnsons.
Household Worker Insurance
What if your gardener was found to be your "employee" and not an independent contractor and thus voiding your public liability insurance?
Would you be able to afford to meet such a damages award, as well as the legal costs involved in defending such a claim?
To avoid this possibly happening to you, WorkCover Queensland has an insurance policy for the specific purpose of providing home owners with insurance protection in such cases.
Household Worker Insurance
The insurance is called “Household Worker Insurance” and costs $50 for a 2 year term (at time of writing).
Further details of this policy of insurance can be found on the website of WorkCover Queensland: Workcover Household Worker Insurance.
This should help you being held liable for significant damages because a domestic worker is injured on your property, and it is advisable for home and property owners to hold public liability insurance and a WorkCover Household Worker Insurance to respond to any injury claims by household workers.
What factors are considered when determining whether a domestic worker is an “employee” or an independent contractor?
The key factors that are considered when determining whether the relationship is one of employer/employee and not principal/independent contractor are as follows:
Terms of the contract between you;
The degree of control the homeowner has over the worker's performance will be considered. For example, whether the homeowner dictates work times, the work to be done and how it is to be performed, and whether permission is needed to leave work or alter work times. The greater control over the work, the more likely it is a relationship of employer/employee;
Whether the worker supplies their own tools and products when performing the work;
Where payment is wholly or primarily for the labour of the worker, then it is a strong indication of an employer/employee relationship;
Whether payment for the services is at an hourly rate, or a set fee for a specific result. The latter arrangement indicates the relationship of principal/independent contractor (eg. $80 to clean the house as opposed to $20 per hour to clean the house);
Whether the worker is responsible for rectifying any defective work free of charge. If so, this indicates the relationship of principal/independent contractor;
Whether the worker can delegate or engage others to do the work. If so, this is an indication of principal/contractor relationship;
Whether the worker has an ABN number which they use to invoice the homeowner. If so, this is an indicator of the principal/independent contractor relationship;
If a personal services business determination is in effect for your domestic worker under the Income Tax Assessment Act 1997 (CW), then they will be considered an independent contractor. How the Australian Taxation Office decides this however is by looking at the key indicators referred to above;
Interestingly, for superannuation purposes, the governing superannuation legislation stipulates that domestic workers in private homes are not considered "employees" if they work less than 30 hours per week.
When making the determination as to what relationship exists, the conditions of employment of the worker as a whole have to be considered together with all of the indicators of the relationship.
Workers’ Compensation & Rehabilitation Act 2003
There are also provisions in the Workers’ Compensation & Rehabilitation Act 2003 stipulating who is and who is not considered to be a “worker” in Queensland (Parts 1 and 2 of Schedule 2 of the Act).
To view this legislation, as well as further information on what considerations are taken into account when determining who is and who is not a "worker" or "employee" in Queensland, read more at: Who is an independent contractor?
There is also a tool at this link to assist you in determining whether your domestic worker may be considered an employee or an independent contractor under workers' compensation legislation and at law.
Strict time limits apply
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