ACAPMA reminds members that contracting, is not always contracting. There are many reasons that the Fair Work Ombudsman or Fair Work Australia would examine the nature of employment of workers at a particular workplace.
Sham contracting, or employing a person in all but name, has long been a target of various authorities. However, recent cases have highlighted that sometimes contractors, who meet all of the criteria of legitimate contract arrangements, will be deemed to be employees. This deeming often comes down to the control the employer has over the time and tasks of the contractor, as well as the amount and nature of any other work that the contractor undertakes outside of the workplace in question.

The implications of a contractor being deemed to be an employee can be wide ranging, including the requirement to provide entitlements like leave and superannuation, vicarious liability issues and even professional indemnity and workers compensation issues.

A case before Fair Work Australia has highlighted another reason to review all contractors. In this case two contractors were deemed to be employees. This was despite the fact that these contractors met all of the workplaces’ tests such as: being employed by another company; having workers compensation at that other company; issuing the workplace with invoices for services etc. The implication in this case was that the deeming of these two contractors as employees took the workplaces’ total number of employees to more than 15 and thus allowed another employee to claim unfair dismissal. For more information on this case click here.

HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general advice and you should seek further advice on your situation by  calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals its free for members. ACAPMA Membership is affordable at only $550 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click  here to become an ACAPMA member.

Elisha Radwanowski
BCom (HRM & IR)
Manager Association Business and Workplace Relations Professional
ACAPMA
elishar@acapma.com.au