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Migrant Workers Compensation Payments: A Change of Attitude By Angellina Katsidis | December 2006

A recent decision of the Supreme Court of New South Wales Court of Appeal in the case of Singh v TAJ (Sydney) Pty Limited (2006) NSWCA 330 has changed the attitude that existed in workers compensation cases with regards to migrant workers’ entitlements to weekly compensation. This case was an appeal from the decision of a Presidential Member of the Workers Compensation Commission, who had decided that an employer acted correctly in ceasing payments to a worker because his visa status had changed, disentitling him to work in Australia. Specifically, the case dealt with a truck driver, Mr Singh, who had arrived in Australia in 1997 on a 3 month visitors’ visa. This was subsequently increased into a Class A visa that entitled the worker to obtain employment in Australia. On 19 April 2000 in the course of his employment with Taj Pty Ltd, Mr Singh was injured and attempted to return to work on light duties which he was unable to manage. His employment ceased on 18 May 2000 and he was paid weekly benefits from that date. In July 2003, Mr Singh’s visa status changed into a Class E visa which disentitled him to work in Australia and as a result weekly compensation payments were ceased by the employer in February 2004. The reasons for the change in visa status seem to have been administrative and had nothing to do with Mr Singh’s work-related injury. Mr Singh brought his case before the Workers Compensation Commission for payment of weekly compensation, but failed. On appeal, before an Acting Deputy President of the Workers Compensation Commission, the worker’s claim was again dismissed. Finally, the worker appealed to the NSW Court of Appeal which in turn reversed the previous decisions and ruled in favour of the worker. The appeal judges’ decision centred on the issue of whether Mr Singh’s lost entitlement to work in Australia affected his right to weekly compensation as a result of the workplace injury. The judges noted section 235(1) of the Migration Act 1958, which states that a non-citizen who works in contravention of a visa condition that restricts the work they may do in Australia, commits an offence. The Arbitrator of the Workers Compensation Commission had decided the case based on the fact that it was not open to him to have regard to a labour market as being available to the worker in circumstances where it would be a criminal offence for the worker to engage in any employment in Australia. The Arbitrator also took into account the fact that if the worker obtained employment in the circumstances he was in, this would be a breach of the Migration Act. As such, the Arbitrator found that the worker’s entitlement under section 40 of the Workers Compensation Act 1987 was nil. An Acting Deputy President of the Workers Compensation Commission on appeal agreed with the Arbitrator and noted that it was not the function of the commission to endorse, condone or simply ignore a breach of the Migration Act 1958.

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The Court of Appeal gave a different explanation of section 40 and said that there are three steps to be followed in calculating the award for partial incapacity under section 40: 1.

Calculate what the employee would have earned but for the injury, assuming the same or comparable employment.

2.

Assess the employee’s post-injury earning capacity.

3.

Exercise discretion based on the circumstances of the case.

The Court of Appeal stated that the correct approach was to determine the weekly amount the worker would probably have been earning but for the injury and secondly to determine the amount that the worker would, at the present time, be able to earn in some suitable employment. It is at this second stage that the Court held that the worker’s visa status was not a relevant consideration as the calculation under section 40 was only a theoretical exercise. Similarly, the Court of Appeal said that the worker’s change in visa status occurred after his workplace injury and this was an important factor to consider. The Court of Appeal ordered that the matter be remitted to the Workers Compensation Commission for determination in accordance with the findings of the Court. This decision is significant in finding that a migrant worker’s visa status should not be taken into consideration when determining an entitlement to section 40 compensation. This is contrary to the approach traditionally taken by insurers and employers based on the decision of the Compensation Court in Viliami v National Springs (1993). Importantly, Singh’s case has set a standard that if an injured worker’s visa status does change making it illegal for them to work in Australia, this does not disentitle them to workers compensation payments.

For more information please contact: Angellina Katsidis Lawyer T: 02 8257 5759 angellina.katsidis@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 11 | 350 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099

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Migrant Workers Compensation Payments: A Change of Attitude