There seems to be a common belief that all ‘share fisherman’ in Queensland are excluded from the operation of the WorkCover Qld workers’ compensation scheme, however, whether a crew member or fisherman is excluded from the scheme depends on the basis which the person is employed and paid.
Queensland’s workers’ compensation scheme is governed by the Workers’ Compensation & Rehabilitation Act 2003 (WCRA) and is administered by WorkCover Qld. Employers who employ “workers” in Queensland are required to maintain insurance with WorkCover Qld to cover injuries sustained by their workers in a workplace accident.
A failure by the employer to maintain a policy with WorkCover Qld for a “worker” will result in the employer being uninsured for any injury claim made by the worker and WorkCover Qld will have the right to recover from the employer any personal injury claim payments, costs, unpaid premiums and also a fine. Claim payments (ie, damages to the injured worker) can be significant particularly if a serious injury has been sustained (which is not uncommon in the fishing industry).
Who is a “worker” under the WCRA is not neatly defined although it is essentially any person who works under a ‘contract of service’. A person can be a “worker” under the WCRA even if they call themselves a ‘sub-contractor’ or operate under their own ABN.
Under the WCRA, a crew member of a fishing vessel is not a “worker” only if:
(a) the person’s entitlement to remuneration is contingent upon the working of the vessel producing gross earnings or profits; and
(b) the remuneration is wholly or mainly a share of the gross earnings or profits.
A ‘share fisherman’ generally receives a percentage share of the overall catch of the vessel (thereby excluding them from the WCRA) however the term is also often used where a person receives a percentage of their individual catch (thereby potentially bringing them within the WCRA) so the precise payment arrangement for each crew member is critical to determining whether the person will be classified as a worker under the WCRA.
It is important that both requirements of the exclusion in the WCRA are met otherwise the crew member will be considered a worker for the purposes of the WCRA and the employer will need to maintain workers’ compensation insurance with WorkCover Qld for the crew member.
WorkCover Qld has published the following examples to highlight those crew members whose working arrangements would result in them being considered a “worker” under the WCRA:
- A crew member who receives a wage (for example, a hourly or daily rate) as their main remuneration.
- A crew member who is paid based on the number of fish or product they catch. This crew member is considered a worker as they are receiving ‘piecework’ rates (for example, fisherman who are paid a set amount per fish or per kilogram of fish regardless of how much the owner of the boat receives for the whole catch).
- A crew member who is taken out on the vessel for a trial in return for food (a ‘tucker trip’). The benefit (food) received for performing trial work would mean the crew member is essentially remunerated for the trial work they are undertaking. If you only need to maintain workers’ compensation insurance for such an arrangement, a minimum premium policy with WorkCover Qld should at least be in place to cover these workers.
It is therefore possible that different insurance arrangements might apply to different crew members working on a vessel. For example, a skipper who is paid a share of the overall catch of the vessel will not be a worker under the WCRA whereas a crew member who is paid an hourly or daily rate or who is paid based on the number of fish which they catch will be considered to be a worker under the WCRA. In this situation, a policy of insurance will need to be maintained with WorkCover Qld for the relevant crew members but not for the skipper.
Those crew members who are excluded as workers under the WCRA should have their own personal injury/accident insurance in place to cover any injuries they might sustain at work (covering, for example, medical expenses and loss of income) as they will not be entitled to any benefits from WorkCover Qld for any work related injuries. Also where the employer is the vessel owner, the employer’s legal liability to such persons (for example, for negligence) will generally be covered under the vessel’s protection and indemnity insurance.
Employers and vessel owners should therefore obtain appropriate advice in relation to the employment and insurance arrangements for their crew. If they are in any doubt as to whether insurance with WorkCover Qld is required, we recommend they seek advice from WorkCover Qld about their particular employment arrangements and if WorkCover Qld advise a policy with them is not required, they should obtain written confirmation from them.
Click on the link to download a copy of Circular – Application of QLD’s WorkCover Scheme to Fishermen – December 2014
This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.