In both the New South Wales and Victoria Workers Compensation legislation there is a legal test for determining which state the worker is entitled to claim compensation, if their claim is related with both Victoria and New South Wales.
The legal test for determining the state legislation that applies is known as “The State of Connection Test”. This test is important in worker’s compensation claims to establish whether the worker is eligible for compensation under the Victoria or New South Wales Worker’s Compensation Scheme. The state of connection determines which state’s laws and regulations apply to a claim.
There is an initial three step test to determine with which state a workers employment is connected. First, it is necessary to determine in which state the worker usually works in that employment. Second, if no state or no one state is identifiable, then it is the state in which the worker is usually based for the purpose of that employment. Finally, if no state or no one state is identified in the first two tests, the state in which the employers’ principle place of business in Australia is located, is the state of connection.
For the first two stages of that test, the test is not satisfied by determining the state in which the worker spent most of their time in that employment. The test looks to identify the state in which the worker habitually, or customarily works or is based. A worker may regularly work or be based in a state, by regularly working half a day in one state and the rest of their time in another state.
If, after applying those three tests and no state has been identified, the worker’s employment is found to be connected with a state if the worker is in that state when the injury occurs.
Determining the state of connection can be important to the recovery of compensation and damages by a worker. A workers’ entitlements are significantly different in Victoria than they are in New South Wales. In order to ensure you are properly compensated and receive your full benefits, and if your employment has associations with both New South Wales and Victoria, you should seek legal advice from a lawyer who has knowledge and experience in cross-border issues.
Contact our Personal Injury department for an obligation-free advice.
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