If a person is injured while working illegally, without a valid working visa, are they excluded from claiming workers compensation benefits?
Generally, they wouldn’t be considered workers under the law and therefore, would not be able to obtain worker’s benefits. However, there are exceptions.
In NSW, under the Workers Compensation Act, courts are granted the discretion to deal with an injured person’s illegal employment contract as though it was legal at the time of the injury, where they consider it to be just and reasonable to do so. *
The court may consider any number of factors relating to the injured worker’s motivations for taking up employment illegally, in order to determine whether the discretion is appropriate.
These factors may include whether the work-place was a lawful business, whether the employer was aware that the employee was an illegal worker, whether the worker disadvantaged any other person by taking the employment, and the seriousness of the workplace injury.
The worker’s family-life, personal circumstances, and the morality of their behaviour may be considered as well.
These factors, however, will not be taken by the courts as a strict guideline, rather, the courts will deal with these issues on a case-by-case basis- leaving this area of law up for some debate.
Workers compensation claims can be uniquely challenging and complex. If you require assistance, contact us for expert consultation, information, or advice.
*(section 24, Workers Compensation Act 1987 (NSW))
This is general information and does not constitute legal advice.