3Definitions

3 Definitions (1) In this Act unless inconsistent with the context or subject-matter— ***accident insurance*** means insurance against liability in relation to workers compensation to which employers are subject under this or any other Act or at common law or otherwise; S. 3(1) def. of *Authority* inserted by No. 50/1993 s. 112(1)(a). ***Authority*** means the Victorian WorkCover Authority; S. 3(1) def. of *Board* amended by No. 10191 s. 259(1)(a). ***Board*** means the Workers Compensation Board established under this Act as in force before the appointed day; S. 3(1) def. of *Commission* inserted by No. 10191 s. 259(1)(b), amended by No. 50/1994 s. 111(a), repealed by No. 67/2013 s. 648(2)(a). S. 3(1) def. of *dependants* substituted by No. 7292 s. 2(a). ***dependants*** means such persons as were wholly mainly or in part dependent upon the earnings of the worker at the time of the death or who would but for the incapacity due to the injury have been so dependent; S. 3(1) def. of *disease* amended by No. 9297 s. 3(1)(a). ***disease*** includes any physical or mental ailment disorder defect or morbid condition whether of sudden or gradual development and also includes the aggravation acceleration exacerbation or recurrence of any pre-existing disease as aforesaid; ***employer*** includes any body of persons corporate or unincorporate and the legal personal representative of a deceased employer, and where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship or otherwise the latter shall for the purposes of this Act be deemed to continue to be the employer of the worker whilst he is working for that other person; S. 3(1) def. of *Fund* inserted by No. 10191 s. 259(1)(c), substituted by Nos 50/1994 s. 111(b), 67/2013 s. 648(2)(b). ***Fund*** means the WorkCover Authority Fund under the **Workplace Injury Rehabilitation and Compensation Act 2013**. S. 3(1) def. of *Government department* amended by Nos 8181 s. 2(1)(Sch. item 192), 8353 s. 19, 9549 s. 2(1)(Sch. item 255), 9921 s. 255. ***Government department*** includes any Government department heretofore or hereafter created and also the State Transport Authority, Metropolitan Transit Authority and the State Rivers and Water Supply Commission; S. 3(1) def. of *injury* substituted by Nos 7292 s. 2(b), 9297 s. 3(1)(b), amended by No. 9372 s. 2. ***injury*** means any physical or mental injury, and without limiting the generality of the foregoing includes— (a) a disease contracted by a worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor and contributed to a recognizable degree; and (b) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was a contributing factor and contributed to a recognizable degree to that recurrence, aggravation, acceleration, exacerbation or deterioration— and for the purposes of this interpretation the employment of a worker shall be taken to include any travelling referred to in section 8(2); S. 3(1) def. of *insurer* amended by No. 10089 s. 4(1). ***insurer*** means the State Insurance Office or any company approved by the Governor in Council as an insurer for the purposes of this Act; S. 3(1) def. of *medical practitioner* repealed by No. 23/1994 s. 118(Sch. 1 item 59.1(a)). ***member of a family*** means wife or husband father mother grandfather grandmother step-father step-mother son daughter grandson granddaughter step-son step-daughter brother sister half-brother half-sister and for the purposes of this Act includes any person who stands in loco parentis to another person and also that other person; S. 3(1) def. of *midwife* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***midwife*** means a person registered under the Health Practitioner Regulation National Law— (a) to practise in the nursing and midwifery profession as a midwife (other than as a student); and (b) in the register of midwives kept for that profession; S. 3(1) def. of *nurse* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***nurse*** means a person registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse (other than as a midwife or as a student); ***outworker*** means a person to whom articles or materials are given out to be made up cleaned washed altered ornamented finished or repaired or adapted for sale in his own home or in other premises not under the control or management of the person who gave out the materials or articles; S. 3(1) def. of *place of practice* inserted by No. 41/2006 s. 31(b). ***place of practice*** means the consulting rooms of the registered medical practitioner; ***port*** includes place or harbour; S. 3(1) def. of *prescribed* inserted by No. 10191 s. 259(1)(d). ***prescribed*** means prescribed by this Act or the regulations or the rules; S. 3(1) def. of *registered chiropractor* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***registered chiropractor*** means a person registered under the Health Practitioner Regulation National Law to practise in the chiropractic profession (other than as a student); S. 3(1) def. of *registered dentist* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***registered dentist*** means a person registered under the Health Practitioner Regulation National Law— (a) to practise in the dental profession as a dentist (other than as a student); and (b) in the dentists division S. 3(1) def. of *registered medical practitioner* inserted by No. 23/1994 s. 118(Sch. 1 item 59.1(b)), amended by No. 97/2005 s. 182(Sch. 4 item 54), substituted by No. 13/2010 s. 51(Sch. item 60.2). ***registered medical practitioner*** means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); S. 3(1) def. of *registered optometrist* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***registered optometrist*** means a person registered under the Health Practitioner Regulation National Law to practise in the optometry profession (other than as a student); S. 3(1) def. of *registered osteopath* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***registered osteopath*** means a person registered as under the Health Practitioner Regulation National Law to practise in the osteopathy profession (other than as a student); S. 3(1) def. of *registered physio-therapist* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***registered physiotherapist*** means a person registered as a physiotherapist under the Health Practitioner Regulation National Law; S. 3(1) def. of *registered podiatrist* inserted by No. 13/2010 s. 51(Sch. item 60.1). ***registered podiatrist*** means a person registered under the Health Practitioner Regulation National Law to practise in the podiatry profession (other than as a student); S. 3(1) def. of *Registrar* substituted by No. 10191 s. 259(1)(d), repealed by No. 50/1994 s. 111(c). S. 3(1) def. of *rules* inserted by No. 10191 s. 259(1)(d), repealed by No. 50/1994 s. 111(c). ***seaman*** means a worker employed as a master officer seaman apprentice or in any other capacity whatever on board a ship by the owner or charterer thereof; ***ship*** includes any ship vessel boat or other craft; S. 3(1) defs of *Tribunal* and *Tribunal Fund* inserted by No. 10191 s. 259(1)(e), repealed by No. 50/1993 s. 112(1)(b). S. 3(1) def. of *the appointed day* inserted by No. 10191 s. 259(1)(e). ***the appointed day*** means the appointed day within the meaning of the **Accident Compensation Act 1985**; S. 3(1) def. of *the Previous Funds* inserted by No. 41/2006 s. 31(a). ***the Previous Funds*** means the Insurers Guarantee and Compensation Supplementation Fund and the Workers Supplementation Fund established under this Act as in force prior to the appointed day; S. 3(1) def. of *Tribunal* inserted by No. 50/1994 s. 111(d). ***Tribunal*** means the Accident Compensation Tribunal established under the **Accident Compensation Act 1985** as in force before the commencement of section 6 of the **Accident Compensation (WorkCover) Act 1992**; S. 3(1) def. of *worker* amended by Nos 7292 s. 2(c), 8271 s. 2(a). ***worker*** does not include an outworker; but save as aforesaid means any person (including a domestic servant) who has entered into or works under a contract of service or apprenticeship or otherwise with an employer whether by way of manual labour clerical work or otherwise and whether the contract is expressed or implied is oral or in writing. (2) Any reference to a worker who has been injured shall where the worker is dead include a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable. (3) As between a tributer or sub-tributer and the lessee or owner of any mine or claim the tributer or sub-tributer (as the case may be) shall for the purposes of this Act be deemed to be working under a contract of service with such lessee or owner and such lessee or owner shall for the said purposes be deemed to be the employer of such tributer or sub-tributer within the meaning of this Act. In this subsection the expressions ***claim* *lessee* *mine* *sub-tributer*** and ***tributer*** have respectively the same meanings as in Part I or (if the case so requires) Part II of the **Mines Act 1958**. (4) Notwithstanding anything in this Act or any law where— (a) any person (in this subsection referred to as "the principal") in the course of or for the purposes of his trade or business enters into a contract with any other person or persons (in this subsection referred to as "the contractor") under which the contractor agrees— (i) to fell trees or cut firewood and deliver the timber or firewood obtained therefrom to the principal; or (ii) to fell trees or cut scrub on land in the occupation of the principal; or (iii) to clear such land of stumps or logs; and (b) the contractor does not either sublet the contract or employ workers or although employing workers actually performs any part of the work himself— the contractor shall for the purposes of this Act be deemed to be working under a contract of service with an employer and the principal shall for the said purposes be deemed to be the employer of the contractor within the meaning of this Act. (5) Notwithstanding anything in this Act or any law, where a person engaged in driving a vehicle used for carrying passengers for reward has the use of that vehicle pursuant to a contract of bailment (not being a bona fide contract for the purchase of the vehicle whether by hire purchase or otherwise) under which he is required to pay any sum or sums (whether of fixed amount or proportionate to mileage or receipts or otherwise) for the use thereof, then for the purposes of this Act— S. 3(5)(a) amended by No. 8804 s. 3(a). (a) such person shall be deemed to be working under a contract of service with an employer; and S. 3(5)(b) amended by No. 8804 s. 3(b). (b) the person from whom the use of the vehicle is obtained under the said contract of bailment shall be deemed to be that employer. S. 3(5)(c) repealed by No. 8271 s. 2(b). (6) Notwithstanding anything in this Act or any law where any person (in this subsection referred to as ***the principal***) in the course of and for the purposes of his trade or business enters into a contract with any other person (in this subsection referred to as the ***contractor***)— (a) under or by which the contractor agrees to perform any work not being work incidental to a trade or business regularly carried on by the contractor in his own name or under a firm or business name; and (b) in the performance of which the contractor does not either sublet the contract or employ workers or although employing workers actually performs some part of the work himself— then for the purposes of this Act the contractor shall be deemed to be working under a contract of service with an employer and the principal shall be deemed to be that employer. S. 3(6A) inserted by No. 9215 s. 2(1). (6A) Notwithstanding anything in this Act a share farmer shall be deemed to be a worker for the purposes of this Act, if and only if— (a) he is employed under a contract with the owner of the land under which he is entitled to receive as consideration whether in cash or in kind or partly in cash and partly in kind less than one-third of the income derived from the land; or (b) he is employed under a contract in writing which provides that the owner of the land shall be liable to pay compensation under this Act in respect of any injury arising out of or in the course of any work carried out by him in the performance of the contract. S. 3(6B) inserted by No. 9215 s. 2(1). (6B) A share farmer is not a worker for the purposes of this Act unless he is deemed to be a worker by virtue of subsection (6A). S. 3(6C) inserted by No. 9215 s. 2(1). (6C) A member of a share farmer's family who is employed by or assists the share farmer whether for remuneration or otherwise in the performance of the duties of the share farmer whether pursuant to the contract between the share farmer and the owner of the land or otherwise shall be deemed not to be a worker in the employ of the owner of the land by reason of the performance of such duties. S. 3(6D) inserted by No. 9215 s. 2(1). (6D) For the purposes of subsections (6A), (6B) and (6C)— ***income*** in relation to land means the gross value of the production derived from the land; ***owner*** in relation to land includes any person who is in possession of, or entitled to the receipt of the rents and profits from the land; ***primary production*** shall mean agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, cultivation of soils, gathering in of crops or rearing of livestock; ***share farmer*** means a person who is under contract to the owner of land to perform any work in relation to land used substantially for primary production and who is to be remunerated in whole or in part by receiving a share of the income, whether in cash or in kind, derived from the land. (7) Notwithstanding anything in this Act or any law, where any person is ordinarily engaged in any employment in connexion with which persons customarily attend certain pre-arranged places in this Act called ***places of pick-up***) at which employers select and engage persons for employment, any such person shall be deemed, while in attendance at any such place of pick-up for the purpose of being so selected or while travelling thereto from his place of residence, or (where he fails to be so selected) while travelling from such place of pick-up to his place of residence, to be working under a contract of service with an employer, and the employer who last employed him in his customary employment shall be deemed to be that employer. S. 3(7A) inserted by No. 9134 s. 2. (7A) Nothing in this Act shall operate to make an employer liable to pay compensation for an injury received after the commencement of the **Workers Compensation (Special Provisions) Act 1978** by a person who is engaged by that employer to participate as a contestant in any sporting or athletic activity if that injury is received while he is— (a) participating as a contestant in any sporting or athletic activity; (b) engaged in training or preparing himself with a view to his so participating; or (c) travelling between his place of residence and the place at which he is so participating or so engaged— and if under the contract pursuant to which he does any of these things or any other contract with that employer he is not entitled to any remuneration other than the remuneration for the doing of those things. S. 3(7B) inserted by No. 9134 s. 2. (7B) For the purposes of subsection (7A) ***person*** does not include a person engaged to participate as a rider or driver in horse, pony or trotting races at race-meetings within the meaning of the **Racing Act 1958** on a racecourse licensed under that Act or on lands otherwise authorized for the holding of race meetings under Part I of that Act. S. 3(7A) inserted by No. 9136 s. 3(2), re-numbered as s. 3(7C) by No. 9297 s. 4(1)(a), substituted by No. 9993 s. 19(2). (7C) A pupil at a school within the meaning of Part IVA of the **Education Act 1958** who is employed pursuant to an arrangement within the meaning of that Part shall for the purposes of this Act be deemed to be a worker employed by the employer whilst he is employed pursuant to the arrangement. S. 3(7B) inserted by No. 9136 s. 3(2), re-numbered as s. 3(7D) by No. 9297 s. 4(1)(b), amended by Nos 9297 s. 4(1)(b), 10089 s. 4(1), 10191 s. 259(2)(a). (7D) The employer of a pupil employed pursuant to an arrangement referred to in subsection (7C) shall in respect of— (a) any liability to pay compensation under this Act in respect of an injury caused to the pupil; and (b) any other liability to pay damages with respect to the death of or the personal injury to the pupil in circumstances arising out of his employment pursuant to that arrangement— be deemed to hold a policy of insurance with the State Insurance Office for the full amount of such liability but otherwise having the same provisions as policies issued by it to employers who obtained policies from it in accordance with section 72(1)(a) as in force before the appointed day. S. 3(7DA) inserted by No. 10156 s. 5(a). (7DA) A student at a technical and further education college specified in Schedule 3 to the **Post-Secondary Education Act 1978** who is employed pursuant to an arrangement within the meaning of Division 5A of Part III of that Act shall for the purposes of this Act be deemed to be a worker whilst that student is employed pursuant to the arrangement. S. 3(7DB) inserted by No. 10156 s. 5(a), amended by No. 10191 s. 259(2)(b). (7DB) The employer of a student employed pursuant to an arrangement referred to in subsection (7DA) shall in respect of— (a) any liability to pay compensation under this Act in respect of an injury caused to the student; and (b) any other liability to pay damages with respect to the death of or the personal injury to the student in circumstances arising out of the employment of that student pursuant to that arrangement— be deemed to hold a policy of insurance with the State Insurance Office for the full amount of that liability but otherwise having the same provisions as policies issued by it to employers who obtained policies from it in accordance with section 72(1)(a) as in force before the appointed day. S. 3(7C) inserted by No. 9136 s. 3(2), re-numbered as s. 3(7E) by No. 9297 s. 4(1)(c), amended by Nos 9297 s. 4(1)(d), 10089 s. 4(1), 10156 s. 5(b), repealed by No. 10191 s. 259(2)(c). S. 3(7F) inserted by No. 9297 s. 4(2), amended by Nos 10089 s. 4(1), 10191 s. 259(2)(d). (7F) The employer of an apprentice shall in respect of— (a) any liability to pay compensation under this Act in respect of injury occurring to the apprentice during the period of indemnity; and (b) any other liability to pay damages in respect of the death of or personal injury to the apprentice, being death or injury that occurs during the period of indemnity, in circumstances arising out of such employment— be deemed to hold a policy of insurance with the State Insurance Office for the full amount of that liability but otherwise having the same provisions as the provisions of policies issued by the State Insurance Office to employers who obtained policies from it in accordance with section 72(1)(a) as in force before the appointed day. S. 3(7G)(7H) inserted by No. 9297 s. 4(2), repealed by No. 10191 s. 259(2)(e). S. 3(7J) inserted by No. 9297 s. 4(2), amended by No. 10089 s. 4(1). (7J) An insurer (other than the State Insurance Office) shall not be subject to any civil or criminal liability by reason only of the fact that he fails in whole or in part to satisfy any claim made in respect of an apprentice, where the claim is one in respect of which the employer is indemnified under a policy deemed to be held under subsection (7F). S. 3(7K) inserted by No. 9297 s. 4(2), amended by No. 10089 s. 4(1), repealed by No. 10191 s. 259(2)(e). S. 3(7M) inserted by No. 9297 s. 4(2), repealed by No. 10191 s. 259(2)(e). S. 3(7N) inserted by No. 9297 s. 4(2), amended by No. 10191 s. 259(2)(f). (7N) In subsections (7F) and (7J), ***apprentice*** means— (a) an applicant for apprenticeship within the meaning of the **Industrial Training Act 1975** who was employed on probation on 1 January 1979; (b) an apprentice within the meaning of the **Industrial Training Act 1975** whose indentures of apprenticeship were executed by his employer on 1 January 1979; (c) an applicant for apprenticeship within the meaning of the **Industrial Training Act 1975** or an apprentice within the meaning of that Act, being an applicant or apprentice who commenced or commences employment as an apprentice (whether on probation or not) after 1 January 1979; and (d) an applicant for apprenticeship within the meaning of the **Industrial Training Act 1975** or an apprentice within the meaning of that Act, being an applicant or apprentice whose employment commenced or commences before, on or after the commencement of section 4 of the **Workers Compensation (Miscellaneous Provisions) Act 1979**. S. 3(7P) inserted by No. 9297 s. 4(2), amended by No. 10191 s. 259(2)(f). (7P) For the purposes of subsections (7F) and (7J), the period of indemnity— (a) in relation to a person to whom paragraph (a) or paragraph (b) of the interpretation of ***apprentice*** in subsection (7N) applies—is the period of twelve months commencing on 1 January 1979; (b) in relation to a person to whom paragraph (c) of the interpretation of ***apprentice*** in subsection (7N) applies—is the period of twelve months commencing on the day on which the person commenced or commences employment as an apprentice; and (c) in relation to a person to whom paragraph (d) of the interpretation of ***apprentice*** in subsection (7N) applies—is the period falling on or after the commencement of section 4 of the **Workers Compensation (Miscellaneous Provisions) Act 1979** excluding any period of indemnity applicable in respect of the apprentice under paragraph (a), (b) or (c) during which the apprentice is travelling between his place of residence or place of employment and any trade, technical or other training school which he is required to attend as an apprentice or is in attendance at any such school. S. 3(7Q) inserted by No. 9297 s. 4(2), amended by No. 10089 s. 4(1). (7Q) Notwithstanding anything to the contrary in the **State Insurance Office Act 1984**, the State Insurance Office shall be and be deemed always to have been authorized to make payments out of the State Insurance Fund in respect of the amount of— S. 3(7Q)(a) amended by No. 29/2011 s. 3(Sch. 1 item 111). (a) any liability of the employer to pay compensation under this Act in respect of injury occurring to an apprentice within the meaning of paragraph (a), (b) or (c) of the interpretation of ***apprentice*** in subsection (7N) during the period commencing on 1 January 1979 and ending immediately prior to the commencement of section 4 of the **Workers Compensation (Miscellaneous Provisions) Act 1979**; (b) any other liability of the employer to pay damages in respect of the death of or personal injury to an apprentice mentioned in paragraph (a), being death or injury that occurred during the period commencing on 1 January 1979 and ending immediately prior to the commencement of section 4 of the **Workers Compensation (Miscellaneous Provisions) Act 1979** in circumstances arising out of the employment of the apprentice; and S. 3(7Q)(c) amended by No. 10089 s. 4(1). (c) any administrative or other expenses incurred by the State Insurance Office in discharging any liability mentioned in paragraph (a) or paragraph (b). S. 3(7R) inserted by No. 9297 s. 4(2), amended by No. 10089 s. 4(1). (7R) There shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly) in such sums and at such times as the Treasurer of Victoria directs any amount or amounts necessary to reimburse the State Insurance Office for such payments out of the State Insurance Fund as are mentioned in subsection (7Q). S. 3(7S) inserted by No. 9297 s. 4(2). (7S) Notwithstanding anything to the contrary in this Act or the regulations or in any policy of accident insurance or indemnity, the following provisions shall apply to every policy of accident insurance or indemnity operating to insure or indemnify an employer against claims under this Act and against any other liability of the employer to pay damages in respect of the death of or personal injury to a worker in circumstances arising out of the employment of the worker— (a) the policy shall not insure or indemnify and shall be deemed never to have insured or indemnified the employer for any claim in respect of which— S. 3(7S)(a)(i) amended by No. 10089 s. 4(1). (i) the employer is deemed to hold a policy with the State Insurance Office under subsection (7F); or S. 3(7S)(a)(ii) amended by No. 10089 s. 4(1). (ii) any payment mentioned in subsection (7Q) has been made from the State Insurance Fund to the employer; and (b) a premium is not and shall be deemed never to have been payable in respect of an apprentice within the meaning of paragraph (a), (b) or (c) of the interpretation of ***apprentice*** in subsection (7N) for the appropriate period of indemnity under subsection (7P). S. 3(8) inserted by No. 8733 s. 3(1). (8) Any reference in this Act to the payment of compensation under or in accordance with this Act shall be deemed to include a reference to the payment of compensation or benefits under any scheme which was certified under the **Workers' Compensation Act 1928**. S. 3A inserted by No. 9136 s. 4(1).