FAQ's - Employment
1. I am a tradesman who has their own ABN but have been working for the same person / company for a number of years. Am I an employee or an independent contractor?
Whether someone is an independent contractor or an employee is a matter of fact to which one applies the law.
The current law with respect independent contractors and employees is clear but the facts vary from case to case which leads to difficulties in where you draw the line and classify the relationship as one of an employee as apposed as to one of an independent contractor.
Essentially the less control the employer/ principal has over a worker the more likely the worker is to be classified as a contractor.
In a situation where you have been working for the same person or company who exercises a considerable degree of control over how you perform your work then you may be considered an employee.
Employees must be paid certain minimum entitlements including superannuation, annual leave and long service leave (if applicable). If you have not been paid these then you should seek legal advice on your rights to claim employment entitlements from your employer.
[see case note below]
2. I have heard that there are different laws relating to employees depending on whom they work for. I do not understand what rights I may have. Can you please advise?
As an employee you will either be covered by the Federal system or a State system.
Employees covered by the Federal system include those employed by;-
- Constitutional corporations (generally Pty Ltd companies).
- Most Victorian employers and all employers in the ACT and NT.
- Commonwealth Government and Commonwealth Authorities.
- Employers who employ flight crews, maritime employees or waterside workers.
The Fair Work Act 2009 applies to Federal system employees but some of the provisions of the previous legislation, the Workplace Relations Act 1996, continue to apply.
Employees covered by the State system include those employed by:-
- Sole traders, partnerships or trusts.
- State Government public sector.
- Australian corporations whose main activity isn’t trading or financial.
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3. I have found out that my employer has been underpaying me. What can I do?
If you have been receiving less pay than the minimum rates of pay prescribed by a State or Federal award then you maybe entitled to make a claim against your employer.
Underpayment of wages often occurs when employees are entitled to penalty rates, allowances or loadings provided by an award.
There are a number of options that an employee has depending on whether they are Federal or State system employees.
Federal system employees can contact the Workplace Ombudsman to investigate a matter on their behalf or initiate their own legal action through the appropriate Courts.
State system employees can lodge a claim at the Queensland Industrial Relations Commission (in certain circumstances) or initiate their own action through the appropriate Courts.
4. I believe I have unfairly dismissed. Can I make a claim for unfair dismissal against my Employer?
Federal system employees who have had their employment terminated by their employer may apply to the Australian Industrial Relations Commission for relief on the ground that the termination was harsh, unjust or unreasonable (‘unfair dismissal’).
In determining unfair dismissal the AIRC may consider such things as:-
- Whether there was a valid reason for the termination related to the employees capacity or conduct.
- Whether the employee was notified of that reason and given the opportunity to respond.
- Whether the employer has been notified of any unsatisfactory performance.
Currently unfair dismissal does not apply to workers who are employed by a company with less than 100 workers, workers employed on a seasonal basis, workers who are on probation, workers engaged under a Contract for employment for a specified period or tasks, workers serving a 6 month qualifying period or workers who were dismissed for a general operation reasons.
From 1 July 2009 the Fair Work Act 2009 changes the above exemptions. All employees can bring an unfair dismissal claim provided they have completed the minimum employment period (i.e. 12 months for small business employing fewer than 15 employees and 6 months for other employers).
However, employees earning over $100,000.00 or who are not covered by an Award or Enterprise Agreement will be exempt from unfair dismissal claims.
Applications will be made to Fair Work Australia within 14 days from the dismissal (as opposed to 21 days under the current legislation).
State system employees can file an application for unfair dismissal with the Queensland Industrial Relations Commission.
A dismissal is unfair if it is for an invalid reason (i.e. the reason for dismissal is unfair or discriminatory) or if it is harsh, unjust or unreasonable (i.e. the dismissal procedure is unfair). Invalid reasons include:-
- Temporary absence due to illness or injury.
- Because an employee filled a complaint against the employer.
- Discrimination.
- Due to membership or non-membership of a union.
- Because the employer refuses to negotiate or make a certified agreement.
- Because an employee or their spouse is pregnant or has given birth.
The unfair dismissal provisions do not apply to the following employees:-
- Short term casual employees.
- Apprentices or trainees.
- Employees serving a probationary period.
- Employees whose annual wages are more than $101,300.00 or were not employed under an Award or Agreement.
- Employees engaged for a specific period or task.
Please note that the above advice is general in its natural and that you should obtain legal advice specific to your circumstances.
Case note – employment entitlements
We recently acted for a person who worked for the same national company (“the Company”) for 20 years. Our client was terminated and came to us for advice.
The Company argued that our client was an independent contractor because they paid an hourly rate of pay for our client’s services to our client’s own company.
We argued that our client’s working relationship with the Company had features of an employment relationship because of (but not limited) to the following:
- Our client did not work for anyone else in the 20 years
- The Company directed the way our client undertook the work
- The Company supplied most of the tools and equipment to our client to perform the work
- Our client wore the uniform of the Company
- The work was performed on the Company’s premises
- Our client could not delegate tasks to third parties
- Our client was an integral part of the Company’s business
Our client threatened legal action for unpaid employment entitlements, including superannuation, annual leave and public holidays (up to 6 years due to statute of limitations) and long service leave.
The matter was settled out of court and our client was very satisfied to have received a significant payment for his entitlements (about 3 times what he was originally offered).
If you would like to find out how Quinn & Scattini can help you, please call us on 1800 999 529, or email us at mail@quinnscattini.com.au
