Employment Law

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A “contractor”, “subbie” or “consultant” may be an employee

Even if a person is called, or calls themself, a “contractor”, “subbie” or “consultant”, they may actually be an employee at law in certain circumstances.

Parties may enter into “sham” contracts in an attempt to avoid taxation and superannuation obligations and thus gain a competitive edge when tendering for work. There is specific legislation dealing with these types of arrangements.

Either, or both, of the above can affect an employer’s obligations to provide paid annual, sick, compassionate and long service leave, pay superannuation and WorkCover premiums. A failure to comply with these obligations can not only result in fines and penalties but you, as the employer, may face claims for reimbursement of worker’s compensation payments and unpaid superannuation.

Does an Award apply?

The Commonwealth Government is expanding the range and types of awards (minimum employment conditions) beyond the “traditional” areas of employment that are usually covered by an award.

This may mean that you:

  • as an employer or are not giving your staff the benefits, including wages, overtime, leave loading, penalty rates and so on to which they are entitled under the law; and
  • as an employee are not receiving the benefits, including wages, overtime, leave loading, penalty rates and so on to which you are entitled under the law.
 Due diligence: Buying or selling a business or company
If you are considering buying a business or company with existing employees, you should carefully examine all employee, contractor and consultant agreements and policies to ensure that you are aware of any potential liabilities (such as annual and long service leave or unpaid superannuation) that you may incur before you complete the purchase.Similarly, if you are considering offering your business for sale, you should ensure that all of your current employees have been receiving their lawful entitlements. If they have not, then your business may not achieve the sale price you hope to achieve or it may not be attractive to any potential purchasers.We can help
Whether you are an employee or an employer, we can help you by:

  1. Preparing, reviewing and revising employment agreements, consultancy agreements and contractor agreements including:
    • Whether the arrangement is an employment agreement, contractor agreement or a sham contract
    • the Fair Work Act 2009 (Cth), Awards and whether they apply or not
    • Confidentiality obligations
    • Intellectual property ownership; and
    • Restraint of trade.
  2. Advising on claims of bullying and harassment.
  3. Advising on claims of discrimination (unlawful discrimination includes sex or racial discrimination, and discrimination on the basis of attributes such as marital status, age and sexual preference).
  4. Advising on strategies, including the implementation of policies and education, to minimise the risk of claims.
  5. Assisting you to bring, or defend, a claim arising out of the workplace environment.
Greg Shaw
For further information, please contact
Greg Shaw of Irish Bentley Lawyers
on (07) 3891 3333
Greg Shaw
Ph: +61 7 3891 3333
E-mail: greg@irishbentley.com.au