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Unfair dismissals benchbook

An overview of legal procedure & case law

Independent contractors

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Table of contents

On this page

  • What is a contract?
  • Independent contractors
  • What is an employment relationship?
  • What is the difference between an employee and an independent contractor?
  • How to determine if a person is an employee or an independent contractor
  • Case examples
  • References

 

What is a contract?

'The law holds that before any simple contract [including a contract of employment and a contract for services] is enforceable it must be formed so as to contain various elements. These are:

  1. There must be an "intention" between the parties to create a legal relationship, the terms of which are enforceable.
  2. There must be an offer by one party and its acceptance by the other.
  3. The contract must be supported by valuable consideration.
  4. The parties must be legally capable of making a contract.
  5. The parties must genuinely consent to the terms of the contract.
  6. The contract must not be entered into for any purpose which is illegal.'[1]

Valuable consideration can be the payment of money or the promise to perform certain duties.

The contract is to be interpreted objectively according to its terms and not on the basis of the subjective beliefs of the parties.[2]

Independent contractors

Contains issues that may form the basis of a jurisdictional issue

In some cases, even though a person has agreed to be an independent contractor, that person may actually be an employee because the relationship is an employment relationship. Similarly, some people, who were considered to be employees, may not be.

What is an employment relationship?

The employment relationship involves two parties:

  • the worker who provides labour, and
  • an entity that receives the benefit of that labour.[3]

What is the difference between an employee and an independent contractor?

In an employment relationship, labour (being a combination of time, skill and effort) is traded for remuneration.[4] There is a provider, a purchaser, an exchange and a contract containing terms and conditions that regulate the exchange.[5]

The 'label' the parties have expressly given to their legal relationship is an important consideration.[6] However '[t]he parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck'.[7]

In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: that is, the parties cannot deem the relationship between themselves to be something it is not.[8]

Courts will look to the 'real substance of the relationship in question.'[9]

There have been many detailed discussions by courts and tribunals about the distinction between an employee and an independent contractor, including what issues should be considered and the way the issues should be decided.

In Hollis v Vabu Pty Ltd[10] it was held that 'the distinction between an employee and an independent contractor is rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own'.[11]

In simple terms, the issue is whether a person works for an employer or works for themselves.

How to determine if a person is an employee or an independent contractor

To help determine whether a person is an employee or an independent contractor, there are a series of factors, referred to as 'indicia', which generally help decide what a person is.

There are no rules as to the weighting given to the indicia in the decision making process.[12] The indicia are just a guide, with the ultimate question being whether the worker is acting for another or on their own behalf.[13]

In considering the criteria, it is necessary to consider the following questions (posed by Bromberg J) in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3):[14]

'Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:

Viewed as a "practical matter":

  1. is the person performing the work an entrepreneur who owns and operates a business; and,

  2. in performing the work, is that person working in and for that person's business as a representative of that business and not of the business receiving the work?

If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.'

The following table is adapted from the summary of indicia originally provided in Abdalla v Viewdaze Pty Ltd t/a Malta Travel[15] and updated in Jiang Shen Cai trading as French Accent v Do Rozario.[16]

To be generally considered an employee To be generally considered an independent contractor

Employer exercises, or has the right to exercise, control over the manner in which work is performed, the location and the hours of work etc.

Worker controls how work is performed.

Employee works solely for the employer.*

Worker performs work for others, or is genuinely entitled to do so.

Employer advertises the goods or services of its business.

Worker has a separate place of work and or advertises his or her services to the world at large.

Employer provides and maintains significant tools or equipment.

Worker provides and maintains significant tools or equipment.

Employer can determine what work can be delegated or sub-contracted out and to whom.

Worker can delegate or sub-contract any work to other persons to complete.

Employer has the right to suspend or dismiss the worker.

Contract may be terminated for breach.

Employer provides a uniform or business cards.

Worker wears their own uniform or other clothing of their choice. Worker has own business cards.

Employer deducts income tax from remuneration paid.

Worker responsible for own tax affairs.

Employee is paid by periodic wage or salary.

Worker provides invoices after the completion of tasks.

Employer provides paid holidays or sick leave to employees.

Worker does not receive paid holidays or sick leave.

The work does not involve a profession, trade or distinct calling on the part of the employee.

The work involves a profession, trade or distinct calling on the part of the worker.

The work of the employee creates goodwill or saleable assets for the employer’s business.

The worker creates goodwill or saleable assets for their own business.

The employee does not spend a significant portion of their pay on business expenses.

The worker spends a significant portion of their remuneration on business expenses.

* Generally referring to full-time employment – some employees may choose to work additional jobs.

The table above is not exhaustive and whether a worker is an employee or contractor may be determined by a factor other than those listed above.[17]

Case examples

Independent contractor

Abdalla v Viewdaze Pty Ltd t/a Malta Travel

Abdalla v Viewdaze Pty Ltd t/a Malta Travel, PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003), [(2003) 122 IR 215].

A travel consultant who occupying business space in the respondent’s premises, was paid by commission, and controlled the hours and manner of his work, was found to be conducting his own business and not to be an employee of the respondent.

NOT an independent contractor

Rabba v PeleGuy Pty Ltd T/A PeleGuy

Rabba v PeleGuy Pty Ltd T/A PeleGuy [2013] FWC 70 (Gooley C, 10 January 2013).

The applicant was a salesperson who worked exclusively for the respondent, was not able to engage others to perform his work, was subject to the respondent’s supervision and control, and sold goods as an integral part of the respondent’s business. The applicant submitted invoices for payment, was paid by commission, was not subject to PAYG taxation, did not receive leave entitlements, and determined his own hours of work. The applicant was held to be an employee of the respondent.

Stanley v Jiarong Lin (Kim) T/A IGA Liquor Plus (SPQR Gourmet Groceries); Carty v Jiarong Lin (Kim) T/A IGA Xpress (SPQR Gourmet Groceries)

Stanley v Jiarong Lin (Kim) T/A IGA Liquor Plus (SPQR Gourmet Groceries); Carty v Jiarong Lin (Kim) T/A IGA Xpress (SPQR Gourmet Groceries) [2012] FWA 2943 (Ryan C, 4 April 2012).

The two applicants had been shop managers who shortly before dismissal had been moved from employee status to independent contractor status. They were found to be employees at the time of dismissal on the basis that the independent contractor arrangement was a sham not genuinely intended by the applicants or the respondent.

Bellia v Assisi Centre Inc

Bellia v Assisi Centre Inc [2010] FWA 2904 (Hamilton DP, 1 June 2010).

A priest who performed religious duties together with considerable pastoral work for the respondent community organisation under its direction and control, and was paid a regular income and provided with other benefits, was found to be an employee.

References

[1] Re Advanced Australian Workplace Solutions Pty Ltd Print S0253 (AIRCFB, Giudice J, McIntyre VP and Redmond C, 25 October 1999) at para. 49; citing Macken, O'Grady and Sappideen, Macken’s Law of Employment (4th ed, 1997) at p. 74.

[2] Akee v Link-Up (Queensland) Aboriginal Corporation [2015] FWC 555 (Hatcher VP, 9 February 2015) at para. 8; citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 (11 November 2004) at para. 40, [(2004) 219 CLR 165].

[3] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (13 April 2011) at para. 201, [(2011) 206 IR 252].

[4] ibid.

[5] ibid.

[6] Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215]; citing Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1 (13 February 1986), [(1986) 160 CLR 16, at p. 37].

[7] Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215]; citing Re Porter [1989] FCA 226 (23 June 1989) at para. 13, [(1989) 34 IR 179, at p. 184]; Massey v Crown Life Insurance Company [1977] EWCA civ 12 (4 November 1977), [[1978] 2 All ER 576, at p. 579]; approved in AMP v Chaplin [1978] UKPC 7 (14 March 1978), [(1978) 18 ALR 385, at p. 389].

[8] Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215]; citing AMP v Chaplin [1978] UKPC 7 (14 March 1978), [(1978) 18 ALR 385, at p. 389]; and Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001) at para. 57, [(2001) 207 CLR 21].

[9] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (13 April 2011) at para. 189, [(2011) 206 IR 252].

[10] Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001), [(2001) 207 CLR 21].

[11] ibid., at para. 40; citing Marshall v Whittaker's Building Supply Co [1963] HCA 26 (7 August 1963), [(1963) 109 CLR 210, at p. 217].

[12] Sammartino v Mayne Nickless Express t/a Wards Skyroad Print S6212 (AIRCFB, Munro J, Duncan DP, Jones C, 23 May 2000) at para. 58, [(2000) 98 IR 168].

[13] Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1 (13 February 1986), [(1986) 160 CLR 16, at p. 37].

[14] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (13 April 2011) at para. 208, [(2011) 206 IR 252].

[15] PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215].

[16] [2011] FWAFB 8307 (Lawler VP, O’Callaghan SDP, McKenna C, 2 December 2011) at para. 30, [(2011) 215 IR 235].

[17] Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215].

Updated time

Last updated

15 January 2020

 

 

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      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
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  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
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        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
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  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
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      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
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      • Timeframe for lodgment
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        • Order for reinstatement cannot be subject to conditions
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        • Calculating compensation
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        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
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      • Costs against representatives
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    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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