Case: Can working holiday visa holders claim workers compensation benefits?

Working Holiday Maker program

The Working Holiday Maker program grants 3 types of Working Holiday visas. Visa holders can live in Australia for up to 12 years and work legally for up to 6 months.

An example of a person on a working holiday visa making a workers compensation injury claim

The Working Holiday Maker program grants 3 types of Working Holiday visas. Visa holders can live in Australia for up to 12 years and work legally for up to 6 months.

Case

Martin is a Working Holiday visa holder, and he has been working as a bartender for more than 6 months which is illegal according to  migration law. One day he experienced right thumb pain whilst he was shaking alcoholic drinks. He continued working; however, the next day he reported it to his GP as he had a rostered day off. He returned to work for 4 days but when he visited his GP, he was advised that his right thumb is inflamed. He had  right thumb, wrist, shoulder and elbow injuries.

Who is an illegal worker?
According to migration law, it’s a criminal offence for non-citizens to perform work in Australia when they are not entitled to work. This statement applies to lawful non-citizens who hold a temporary visa but work illegally, and it applies to unlawful non-citizens who do not hold any visa at all. The fine to break this law can go up to $10,000.

Decision

The New South Wales courts have concluded that an injured worker is entitled to receive workers compensation benefits even though he was working illegally. The court explained the decision as follows:

• It has applied a general principle of the common law to circumstances where a worker is injured while working illegally. The principle is that working illegally does not prevent some rights -including workers compensation- arising under the contract, such as claims for personal injury.
• It is said that the policy and social undesirability of preventing action by workers (or their employers for that matter) outweigh any policy reasons for not giving any effect to a contract of employment where the performance of the work involves an unlawful act.

Result

The insurer admitted provisional liability and he started getting medical expense compensation for his injury.

Workers compensation lawyers free consultation

If you had an accident as a working holiday visa holder and planning to claim compensation for your injuries, you can get free legal advice at Withstand Lawyers. Our compensation lawyers provide virtual and in-person free claim check. Feel free to call us on 1800 952 898 or fill out the form below to get a callback.