WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 175

WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 175

175 .         When principal, contractor and sub-contractor deemed employers

        (1)         Where a person (in this section referred to as the principal ) contracts with another person (in this section referred to as the contractor ) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.

        (2)         The principal is entitled to indemnity from the contractor for the principal’s liability under this section.

        (3A)         The indemnity conferred by subsection (2) does not allow the principal to recover from the worker —

            (a)         any amount which the worker receives from the contractor by way of compensation or damages in respect of a compensable injury; or

            (b)         any amount which the worker receives from WorkCover WA under section 174 in respect of the contractor’s liability to pay compensation or damages to the worker.

        (3B)         The indemnity conferred by subsection (2) does not allow the principal to recover any amount from WorkCover WA.

        (3)         The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the injury is directly a part or process in the trade or business of the principal.

        (4)         Where the principal and the contractor are jointly and severally liable under this section, a judgment obtained against one is not a bar to proceedings against the other except to the extent that the judgment has been satisfied.

        (5)         Where compensation is claimed from or proceedings are taken against the principal, in the application of this Act a reference to the employer shall be read as a reference to the principal except where, for the purpose of calculating the amount of compensation, a reference is made to the earnings of a worker, the reference shall be read as a reference to the earnings of the worker under the contractor.

        (6)         For the purposes of this section, where sub-contracts are made —

            (a)         principal includes the original principal for whom the work is being done and each contractor who constitutes himself a principal with respect to a sub-contractor by contracting with him for the execution by him of the whole or any part of the work; and

            (b)         contractor includes the original contractor and each sub-contractor; and

            (c)         a principal’s right to indemnity is a right against each contractor standing between the principal and the worker.

        (7)         Where the injury does not occur in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management, subsections (1) to (6) inclusive do not apply.

        (8)         Nothing in this section makes either a principal or a contractor liable to pay any damages which, but for this section, the principal or contractor would not be liable to pay.

        [Section 175 amended: No. 42 of 2004 s. 147; No. 31 of 2011 s. 118; No. 12 of 2012 s. 12.]