Independent Contractors & Sham Contracting
Independent contractors
Independent contractors run their own business. They usually negotiate their own fees and working arrangements and can work for more than one client at a time. Independent contractors are often called contractors or subcontractors (subbies).
The difference between contractors and employees
Independent contractors have different obligations and rights to employees because they are running their own business. This means it’s important to understand the difference between the 2.
There are a number of things that can help you tell the difference between an employee and a contractor. There isn’t one that makes a difference on its own – you need to consider everything together.
Employees
The factors that are indicative of an employee are that they:
- have their work directed and controlled by their employer
- work set or standard hours (casual employees hours can vary from week to week)
- usually have an ongoing expectation of work
- bear no financial risk – it’s covered by their employer’s insurance
- are entitled to superannuation contributions from their employer
- are provided by their employer with tools or a tool allowance is provided
- have income tax deducted by their employer
- are paid wages or a salary regularly
- are entitled to paid leave.
Independent contractors
The factors that are indicative of independent contractors are that they:
- have a high level of control over how the work is done, including the choice to hire others to assist
- agree to the hours required to complete the job
- usually engaged for a specific task or time
- bear the risk of making a profit or a loss and usually bears responsibility and liability for poor work or injury and usually have their own insurance
- generally pay their own superannuation
- use their own tools and equipment
- pay their own tax and GST
- have an ABN and submits invoices
- don’t receive paid leave.
You need to consider all of these factors when working out whether you are an employee or an independent contractor. There won’t be one thing on its own that decides whether you are an employee or an independent contractor. Just because you have an ABN or issue invoices doesn’t automatically make you an independent contractor.
Independent contractors can also do the same type of work as an employee of the business they are doing work for and still be an independent contractor. A person won’t automatically be an employee or an independent contractor because of the type of work they do.
Sham contracting
Sham contracting is where a person working as an employee is told they are an independent contractor when they’re not. They will also be treated like an independent contractor in some ways, for example they may be required to have an ABN and submit invoices.
Sham contracting is illegal. It’s illegal to:
- claim an employee is an independent contractor
- say something false to convince an employee to become an independent contractor
- dismiss or threaten to dismiss an employee if they don’t become an independent contractor
- dismiss an employee and hire them as an independent contractor to do the same work.
Sham contracting can be done intentionally or carelessly by an employer. These types of arrangements are sometime set up by employers who are seeking to avoid responsibility for paying legal entitlements to employees.
Getting paid
Since independent contractors aren’t employees, they don’t have a minimum wage or pay rate. Instead, independent contractors negotiate payment as part of their contract.
An independent contractor will submit an invoice when they need to be paid. They can be paid on a regular basis or at the end of the contract or project.
Since independent contractors are running a business, they will need to arrange for tax to be taken out of their pay and pay GST. For more information on tax visit the Australian Taxation Office .
If an independent contractor doesn’t get payment for an invoice they can go to Small claims or seek independent legal advice for help.
As well as paying their own tax, independent contractors may need to make their own superannuation contributions. For more information on when superannuation is paid by the contractor or the hirer visit the Australian Taxation Office .
Minimum entitlements
Independent contractors don’t get other entitlements that employees get such as leave and notice of termination unless they negotiate for these entitlements to be included in their contract.
Independent contracting laws
The Fair Work Act 2009protects independent contractors from adverse action, coercion and abuses of freedom of association.
The Independent Contractors Act 2006 sets up a national unfair contracts scheme for independent contractors where they can ask a court to set aside a contract if it is harsh or unfair.
Further information
You can find out more about independent contractors by visiting business.gov.au – independent contractors or calling business.gov.au on 13 28 46.
Article published by Fair Work Ombudsman. For the full article go to: www.fairwork.gov.au/find-help-for/independent-contractors Page reference No: 2799
