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

Online Inquiry

Posted on

February 6, 2022

by

Workers Compensation
young bartender working holiday visa

Working Holiday Maker program

working holiday visa

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.

hotel bar in sydney australia
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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.

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The Withstand lawyers team that helped me with my claim were amazing, talking me through each step and being understanding and thoughtful to my feelings. I would highly recommend them to anyone needing compensation lawyers. Thank you Withstand!!
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The team really know their staff. To Nayven, Issa, Sam and Danielle a heartfelt thank you for all your hard work, courtesy, superb efforts and a big thumbs up from me.
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The Lawyers at Withstand are really really helpful I know I waited for quite a few years to get my results for the Motor Vehicle Accident and then I got a call just a month ago from Nayven Taouk. He told me that he's going to take up my case and yes we got the Best Outcome. Thank you!
Hazel A
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Terrific experience and positive outcome. It was unfortunate we did not go to them first. I would recommend them for anyone who wants qualified, quick, efficient support. Thank you Tanja, Robert and the team.
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*Our No Win No Fee policy means that you will not be out of pocket for our costs or disbursements if you lose your claim – no win no fee. If we commence court proceedings and you are unsuccessful you still won’t be out of pocket for our costs and disbursements however you will be out of pocket for the other sides legal costs and disbursements. Prior to commencing proceedings we will provide you with an authority explaining the risks and costs which could arise if you lose in court, one being that if you lose in court you would be liable for the legal costs and disbursements of the other side.
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Kristy W
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The Withstand lawyers team that helped me with my claim were amazing, talking me through each step and being understanding and thoughtful to my feelings. I would highly recommend them to anyone needing compensation lawyers. Thank you Withstand!!
Francis A

Read More
The team really know their staff. To Nayven, Issa, Sam and Danielle a heartfelt thank you for all your hard work, courtesy, superb efforts and a big thumbs up from me.
Zilla W

Read More
The Lawyers at Withstand are really really helpful I know I waited for quite a few years to get my results for the Motor Vehicle Accident and then I got a call just a month ago from Nayven Taouk. He told me that he's going to take up my case and yes we got the Best Outcome. Thank you!
Hazel A

Read More
Terrific experience and positive outcome. It was unfortunate we did not go to them first. I would recommend them for anyone who wants qualified, quick, efficient support. Thank you Tanja, Robert and the team.
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*Our No Win No Fee policy means that you will not be out of pocket for our costs or disbursements if you lose your claim – no win no fee. If we commence court proceedings and you are unsuccessful you still won’t be out of pocket for our costs and disbursements however you will be out of pocket for the other sides legal costs and disbursements. Prior to commencing proceedings we will provide you with an authority explaining the risks and costs which could arise if you lose in court, one being that if you lose in court you would be liable for the legal costs and disbursements of the other side.

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