New South Wales has some of the most progressive Workers Compensation legislation to protect workers in case they are injured at work.

Your Rights as an Injured Worker

When you are injured you have specific rights under the Workers Compensation legislation, namely:

*      See your own doctor and name your doctor as the nominated treating doctor

*      Choose our own Rehabilitation Provider

*      Choose your own treatment providers such as physiotherapist, chiropractor

*      Choose your own legal representative

*      Have your Union assist you with your claim and any return to work or suitable duties issues

*      Have all the information about your return to work treated confidentially on a need to know basis

Other Employment Rights

When you are injured, you maintain all your rights under your contract of employment.  Other protections you have as an injured worker include:

Industrial Relations Protections

*      Restrictions on terminating the employment of injured workers.  Termination of employment may be unlawful termination under the Workplace Relations Act 1996 (Cth), or constitute unfair dismissal, or unfair contract rights under the Industrial Relations Act

*      Part 7 of the Industrial Relations Act also provides that an injured employee cannot have their employment terminated on the basis of an injury within the first 6 months

*      If the employment is terminated after this period of time the position must be left open for 2 years should the person become fit to do the job, or a different job, and the new staff member notified

*      If you are dismissed within the first 6 months of an injury, or if you are dismissed, and within 2 years, become fit for your pre-injury job, the AMIEU can apply for you to be reinstated in your old job or a different job with your old employer

Disability Discrimination Protections

*      It is unlawful for a company to discriminate against an injured worker at any stage during the rehabilitation process.  The relevant legislation is the Disability Discrimination Act 1992, Commonwealth 'DDA' and the Anti Discrimination Act 1997 (NSW) 'ADA'.

*      It is unlawful to deny the employee access or limit the employee's access to opportunities for promotion, transfer and trading, or to any benefits associated with employment, terminating the employment, or any other detriment (s15 DDA and ss 49DD to 49K of the ADA)

*      Employers must also be able to demonstrate that they have provided any services or facilities which are needed by person with a disability to carry out the essential duties of a job unless they can prove that to provide such services, facilities or adjustments would cause unjustifiable hardship

*      The Occupational Health and Safety argument can only be used if the employer can demonstrate there is real objective risk to the health and safety of other employees, and the employer is not able to take the steps which could be reasonably taken to eliminate such risks

*      The Human Rights and Equal Opportunities Act makes it unlawful to discriminate on the grounds of medical records (Section 31b).

There are a number of pieces of legislation which protect workers from many types of discrimination resulting from injury and/or disability

You have the right to choose your own doctor, rehabilitation provider and treatment provider

You have the right to be represented by the Union

You cannot be terminated from your employment within 26 weeks of suffering your injury or illness

If terminated from your employment after the 26 weeks, you have the right to be returned to work within 2 years after the termination if you recover from your injury.