This update was co-authored by Jonathan O’Connor, Law Graduate
The Hon Bill Johnston MLA recently released a media statement announcing the McGowan Government’s intention to re-write WA’s workers’ compensation legislation, no doubt having regard to the extensive review process undertaken in 2013. This brief article highlights one issue that might usefully be addressed in any future changes to the legislation, namely that of the relatively uncertain status of some foreign workers in Australia, particularly those workers under the well-known Temporary Work (Skilled) or ‘457’ visa (which is soon to be replaced by the TSS visa).
Certain non-citizens not entitled to workers’ compensation
It is well established that lawful non-citizens, being workers on visas which permit them to work in Australia, such as the 457 visa, are generally entitled to compensation for workplace injuries (Manthe v BHP Billiton Iron Ore Pty Ltd  WADC 160; Singh v Taj (Sydney) Pty Limited  NSWCA 330). They are entitled to compensation because they meet the definition of “worker(s)” under the Workers’ Compensation and Injury Management Act 1981 (WA) (the WCIM Act).
However, persons working in contravention of their visa conditions, meaning workers on visas which do not permit them to work in Australia and workers on visas who are working contrary to the conditions of their visa, for example workers on 457 visas who are working for an employer other than their approved sponsor, are not generally entitled to compensation for workplace injuries. In addition, unlawful non-citizens, meaning persons who have overstayed their visa or are otherwise living in Australia illegally, may not be entitled to compensation.
Such persons do not meet the definition of “worker” under the WCIM Act as a result of having breached either s 235(1) or (3) of the Migration Act 1958 (Cth) (the Migration Act), which respectively provide that it is an offence for persons on visas to work in contravention of their visa conditions and for unlawful non-citizens to work in Australia.
As per the decision of the majority of the Queensland Court of Appeal in Australia Meat Holdings Pty Ltd v Kazi  QCA 147 and the case of Smallwood v Ergo Asia Pty Ltd  FWC 964 in the Fair Work Commission, s 235(1) and (3) of the Migration Act operate to invalidate any contracts which are the subject of a breach. Pursuant to these provisions, persons working in contravention of their visa conditions and unlawful non-citizens are not capable of entering into a lawful contract of employment. As they do not have a lawful contract of employment, they are not considered to be “workers” under the WCIM Act.
The position is different, however, in the case of a worker who suffers a workplace injury while on a visa which permits that person to work in Australia but subsequently that visa runs out or they otherwise lose permission to work in Australia. Any entitlement to compensation is not affected by the change in status (Manthe; Singh), although the same cannot necessarily be said in relation to all matters that may arise, for example the question of reinstatement of entitlements.
Discretion to treat illegal contracts of employment as valid
However, there is an additional factor affecting the potential entitlement of persons working in contravention of their visa conditions and unlawful non-citizens, to compensation under the WCIM Act. Section 192 gives an arbitrator a discretion to treat illegal contracts of employment as valid. A favourable exercise of that discretion would arguably result in the illegal contract entered into by the claimant, being treated as a valid contract of employment with the result that the claimant could be regarded as a worker under the WCIM Act.
The factors relevant to an exercise of the s 192 discretion are likely to include:
- whether the employer was aware that the worker was working in Australia without permission to do so (which, by way of note, may constitute an offence under the Migration Act);
- whether the work itself was illegal;
- whether the worker disadvantaged any person by undertaking the employment; and
- whether there was an adequate element of moral turpitude on the part of the worker.
As is evident from the above, we continue to be highly reliant on the interpretation of the decisions of the courts, particularly those in other jurisdictions, in the resolution of disputes arising from these matters under the WCIM Act. That reliance would be reduced by the codification of factors relevant to the exercise of the discretion under s 192. Any legislative amendment to this effect would have to be welcomed.
Thanks to Rozita Jahangirian for her contribution to this article.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.