Table 3.10: Uninsured employer provisions

  Uninsured Employers 
NSW A claim may be made against the Nominal Insurer by any person in respect of an injury if the employer is uninsured or unable to be identified by the worker — s140, Workers Compensation Act 1987. The employer is required to repay the amount spent on the claim — s145, 1987 Act, plus penalties incurred for not maintaining a workers’ compensation insurance policy — s155, 1987 Act. 
Vic

Where an employer is required to register for WorkCover Insurance and pay premium but has not done so, WorkSafe Victoria is liable to pay compensation and damages to injured workers in accordance with the Act and to indemnify the employer in respect of their liabilities under the Workplace Injury Rehabilitation and Compensation Act 2013 — ss70 and 71 

WorkSafe Victoria may recover an amount, not exceeding the amount of compensation and damages which has been paid, as well as additional penalties from an employer which is required to register for WorkCover Insurance and pay premium but has not done so — ss34 and 488.

Qld WorkCover may recover from the employer the amount of the payment made to an injured worker together with a penalty equal to 50% of the payment, as well as the amount of unpaid premium together with a penalty equal to 100% of the unpaid premium — s57. 
WA

Where an employer is not insured against their liability to pay compensation or damages to an injured worker, WorkCover WA will pay an amount to satisfy the award or any award for costs made from the General Account (uninsured fund) — s174 

Where an employer is uninsured, that employer will be directly liable for the following costs: 

  • statutory benefits 
  • legal costs involved in court action 
  • liability for damages 
  • fines of up to $5,000 per worker 
  • an amount equal to any avoided premiums going back 5 years, and 
  • separate and further offences for every week remaining uninsured after the date of conviction — s170 and 174AA. 
SA

An injured worker can make a claim regardless of the status of the employer. 

The employer is required to register and pay a premium. If an employer fails to make a payment of compensation that it is liable to make under the Return to Work Act 2014 (e.g., first 2 weeks income maintenance), ReturnToWorkSA shall make that payment and will take all reasonable steps to recover the debt — s64(20). 

Tas

The Nominal Insurer is an independent statutory body established to ensure that injured workers are not disadvantaged in circumstances where: 

  • the employer is not insured 
  • the employer has left the State and its whereabouts are unknown 
  • the employer or licensed insurer has become insolvent, or 
  • for any other reasons, there are reasonable grounds for believing that the employer or licensed insurer is, or is likely to be, unable to discharge in full any liability under the Workers Rehabilitation and Compensation Act 1988 — ss121 and 126. 

The Tasmanian Civil and Administration Tribunal can order the Nominal Insurer to meet the employer’s liability for the claim — s127. The Nominal Insurer will then attempt to recover the amount paid in relation to the claim from the employer or insurers involved — s130. An uninsured employer may be prosecuted and, if convicted, may be ordered to pay avoided premiums in addition to any fine the court may impose — s97(10). 

NTThe Nominal Insurer Fund is established by the Minister and administered by the Nominal Insurer — s162. Where an employer is uninsured, the employer must forward the claim to the Nominal Insurer — s84. The Nominal insurer will manage and pay the claim — s85(10). The Nominal Insurer is entitled to recover compensation amounts paid, from the employer — s172(2). The employer shall also pay an amount equal to the highest premium payment for the period there was no cover, to the Nominal Insurer — s172(3). 
ACT 

The Default Insurance Fund (DI Fund) provides a safety net to meet the costs of workers’ compensation claims where an employer did not have an insurance policy or an approved insurer is wound up or cannot provide the indemnity required to be provided under a policy — s166A 

  • If an employer fails to maintain a compulsory insurance policy, the regulator may recover up to double the avoided premium for a period of up to 5 years, as a debt owing by the employer to the DI fund (s149). However, the employer is not liable under s(1) for a failure to maintain a compulsory insurance policy in relation to a worker if: 
  • the employer provides evidence that a State was the Territory or State of connection for the employment under the law of a State corresponding to part 4.2A (Employment connection with ACT or State) s149(2a), or 
  • the employer had insurance, or was registered, as required under a law of the State in relation to liability for workers’ compensation under the law of the State — s149(2b 
C’wealth Comcare Not necessary within the ‘premium’ (Commonwealth and ACT Public Sector) component of the scheme as all employees are ‘Government’ employees. The Commonwealth could be considered to be the nominal insurer through the Department of Finance and Administration for injuries incurred before 1 July 1988. Liabilities of the Commonwealth (but not self-insured licensees) incurred before this date are not funded through the Comcare premium scheme. In the self-insured (licensee) component of the scheme, prudential arrangements including the requirement for a guarantee held by the SRC Commission ensure licensee liabilities are covered in the event of bankruptcy. 
C’wealth Seacare A policy of insurance or indemnity is compulsory for all employers — s93. A statutory fund stands in the place of an employer’s if there is a default event in relation to the employer — s4(3) and ss96-102. 
C’wealth DVA N/A
New Zealand An employer must pay, in accordance with the Accident Compensation Act 2001 and regulations made under the Act, levies to fund the Work Account. The Scheme covers all workers regardless of whether their employer has breached the Act by failing to pay levies.