Uninsured, bankrupt or missing employers
Every employer must take out an insurance policy to cover liabilities for workers compensation; failure to do so is a criminal offence. If an employer does not have such a policy at the time of a worker’s injury, the worker is still protected.
The employer must pay workers compensation benefits for the first 10 days of incapacity, and an amount towards the worker’s reasonable medical costs. If the employer’s wage bill is very small (s 72), or if the employer is unable to or does not pay the benefits and medical costs, WorkSafe must assume responsibility and make these payments to the worker. This ensures that the worker receives payments and does not have to bear the loss (s 93).
It is a criminal offence for an employer or prospective employer to engage in discriminatory conduct for a prohibited reason (s 575). ‘Discriminatory conduct’ includes dismissing, altering the position of, treating a worker less favourably, or refusing employment.
Discriminatory conduct is for a ‘prohibited reason’ if the dominant reason is that a worker has given notice of injury or made or pursued a claim for compensation.
If an employer or prospective employer is convicted or found guilty of an offence against section 575, then a court may award damages, or up to 12 months remuneration, or order reinstatement or that the worker be given employment.
Alternatively, a worker or prospective worker can apply to the Industrial Division of the Magistrates’ Court for similar orders if there has been discriminatory conduct for a prohibited reason.
An employer or prospective employer has a number of possible defences to all of the above proceedings. Such defences include compliance with the Occupational Health and Safety Act 2004 (Vic), the worker being unable to perform the ‘inherent requirements’ of the adjusted employment, and the worker engaging in a fraudulent or dishonest claim.