Table 4.5: Definition of deemed worker

Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 lists the 21 specific circumstances in which persons are deemed to be workers:

1. workers lent or on hire
   1. outworkers
2. other contractors
   1. contractors under labour hire services arrangements
3. rural work
4. timbergetters
5. salespersons, canvassers, collectors and others
6. tributers
7. mine employees
8. mines rescue personnel
9. jockeys and harness racing drivers
10. drivers of hire-vehicles or hire-vessels — contract of bailment
11. caddies and others employed through club
12. shearers’ cooks and others
13. fire fighters in fire districts
14. workers at place of pick-up
15. boxers, wrestlers, referees and entertainers
16. voluntary ambulance workers
17. ministers of religion
18. ministers of religion covered by policies, and
19. participants in training programs.

Circumstances under the Workplace Injury Rehabilitation and Compensation Act 2013 where a person may be deemed to be a worker:

• students  under work experience and practical placement arrangements, apprentices, persons participating in declared training programs — Clauses 1 to 3 Schedule 1
• secretaries of cooperatives — Clause 4 Schedule 1
• door to door sellers — Clause 5 Schedule 1
• timber  contractors — Clause 6 Schedule 1
• drivers of passenger vehicles — Clause 7 Schedule 1
• owner drivers carrying goods for reward — Clause 8 Schedule 1
• contractors — Clause 9 Schedule 1
• share farmers — Clause 12 Schedule 1
• declared workers of religious bodies and organizations — Clause 13 Schedule 1
• crown employees, Ministers, government members, judicial officers, bail justices, public corporation members, retired police reserve members — Clause 14 Schedule 1
• municipal councillors — Clause 15 Schedule 1
• persons engaged at places of pick-up for the purposes of being selected for work (e.g. fruit pickers) — Clause 16 Schedule 1
• jockeys and track riders, riders and drivers in mixed sports gatherings — Clauses 17 and 18 Schedule 1
• outworkers — Clause 19 Schedule 1.

Circumstances under the Workers’ Compensation and Rehabilitation Act 2003 where a person may be deemed to be a worker:

• sharefarmers — Schedule 2 (1.1)
• salespersons — Schedule 2 (1.2)
• certain contractors and workers of contractors — Schedule 2 (1.3).
• workers lent or on hire (including labour hire firms and holding companies) — Schedule 2 (1.4 - 1.6).
• interns performing work for a business or undertaking without payment of wages to gain practical experience in the type of work performed by the business or undertaking, or to seek to obtain a qualification – Schedule 2 (pt 1 s 7)

Circumstances under the Workers Compensation and Injury Management Act 2023 and Workers Compensation and Injury Management Regulations 2024 where a person may be deemed to be a worker:

• contractors s12
• labour hire s14
• jockey — s15
• working directors — s16.
• workers who hold public office r13
• religious workers r14
• NDIS support workers r15

WorkCover WA guidance: 

• Workers’ Compensation and Injury Management: A Guide for Employers 
• Workers Compensation Insurance for Contractors: Explanatory Guide & Assessment Tool
• Guidelines for Labour Hire Employers
• Workers Compensation and Working Directors
• NDIS Support Worker Fact Sheet

The definition of ‘contract of service’ in s4(1) of the Return to Work Act 2014 includes: ‘a contract, arrangement or understanding under which one person (the worker) works for another in prescribed work or work of a prescribed class’. Current classes of work prescribed under Regulation 5 of the Return to Work Regulations 2015, include:

• building work (other than wall or floor tilers)
• cleaning work
• council workers driving a motor vehicle used for the purpose of transporting goods or materials driving a taxi cab or similar motor vehicle
• driving or riding for fee or reward a vehicle, other than a commercial vehicle, for the purpose of transporting by road goods or materials (including money) where the driver or rider does not simultaneously own or operate more than 1 vehicle for work purposes
• work as an entertainer
• thoroughbred riding work where the work is performed by a licensed jockey
• work as an outworker, and
• work as a licensed jockey.

Under  s175(2) of the Return to Work Act 2014, the Corporation may also extend the application of the Act to self-employed persons.

Circumstances under the Workers Rehabilitation and Compensation Act 1988 where a person may be deemed to be a worker:

• contractors where the work exceeds $100 and is not incidental to a trade or business regularly carried on by the contractor, where the contractor does not have personal accident insurance — s4B
• services of workers lent or on hire — s4A
• police  volunteers ( i.e., volunteers performing police operations) — s6A
• volunteers performing fire-fighting operations and fire prevention operations — s5
• volunteers providing ambulance services — s6
• port and harbour persons engaged at places of pickup — s25(4)
• salespersons, canvassers and collectors — s4C
• luxury  hire car drivers and taxi drivers — s4DA and  s4DB
• jockeys — s4DC
• specified clergymen — s3(4)
• participants in training programs — s4D
• persons in relationship prescribed to be relationship between employer and worker — s4E, and
• prescribed classes of volunteers — s6B (none are currently prescribed for the purpose of s6B).

Circumstances under the Workers Compensation Act 1951 where a person may be deemed to be a worker:

• casuals (in certain instances) — s10
• regular contractors — s11(1)
• labour hire – s12
• subcontracting — s13
• trainees — s14
• outworkers — s15
• timber contractors — s16
• family day care carers — s16A
• religious workers — s17
• volunteers — s17A
• commercial voluntary workers — s18, and
• public interest voluntary workers — s19.

Circumstances under the Return to Work Act 1986 and Regulations where a person may be deemed or prescribed to be a worker:

• workers of householders —s3B(11)
• directors —s3B(6)
• jockeys — reg 3A(1)(b)
• taxi drivers — reg 3A(1)(c) - None currently deemed
• person performing work under a community court order —s3B(12)
• jurors — reg 3A(1)(aa)
• family members —s3B(3)(4)
• emergency service volunteers —S3B(8)
• volunteer fire fighters —s3B(8)(b)(c)
• St Johns ambulance volunteers — reg 3A(1)(a).

Under s5(2) of the Safety, Rehabilitation and Compensation Act 1988, the following persons are deemed to be employees of the Commonwealth, provided they perform certain duties:

1. the Commissioner of the Australian Federal Police (AFP), Deputy Commissioner of the AFP or an AFP employee
2. a person (other than a person to whom subsection (3) applies) who is the holder of or is acting in:
3. an office established by a law of the Commonwealth, or
4. an office that is established by a law of a Territory (other than an ACT enactment or a law of the NT) and is declared by the Minister to be an office to which the SRC Act applies — s5(2).

Under  s5(6), certain categories of persons are deemed to be employees of the Commonwealth and the Minister may declare persons who engage in activities or perform acts either under a requirement made by or under a law of the Commonwealth; or at the request or direction, for the benefit of a   Commonwealth authority or a licensed corporation. This includes those undertaking work for the Commonwealth on a voluntary basis. Such volunteers, following a declaration by the Minister, are deemed Commonwealth employees for the purposes of workers’ compensation. All such declarations can be found on the Federal Register of Legislation.

Under  s5(15), at the request of the Chief Minister of the ACT, the Minister may make a written declaration that persons may be taken to be employees of the ACT government when engaging in certain activities — s5(15).