It Was All Smooth Sailing Until that Bl@@dy Independent Contractor Problem Raised Its Head…Again!

iStock-536170913.jpgOne of the challenges that will confront Victorian labour hire providers is that of providing the Authority with accurate data about:

  • the total number of employees;
  • the total number of independent contractors; and
  • the total number of workers who have been employed or engaged as both an employee and an independent contractor. 

It shouldn’t be a problem, but it’s clear from the wording of the regulations* that the Authority will be expecting applicants to get the classifications right. And that’s never easy.

Bromberg J, in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, summed it up pretty well at para [206].

…the absence of a simple and clear definition which explains the distinction between an employee and an independent contractor is problematic. It is troubling that in the circumstances of the bicycle couriers dealt with in Hollis, the parties involved needed to travel to the High Court to obtain a clear exposition of the legal status of the couriers.  Workers and those who employ or engage them require more clarity from the law. That is particularly so when important legislation such as the Fair Work Act (and its predecessors dating back to 1904) have steadfastly avoided defining what is an employee, yet demand (on pain of civil penalty) that there be no misrepresentation as to the nature of the work relationship. (citations omitted)

This time the penalties are likely to include refusal, loss or suspension of a licence and/or penalties for making a false declaration if the information is required to be supported by a declaration under the Oaths and Affirmations Act 2018 (Vic). And that carries penalties of up to about $97,000 or imprisonment for 5 years or both.

And then, there’s the little issue about what the Authority is going to do with the information. Remember, you also have to provide information about the industries into which you supply services and the Awards under which you operate. That information is likely to be matched up.

What do you think is going to happen if an applicant declares that it supplies an uncharacteristically high number of independent contractors to an industry in which independent contracting is not the typical or dominant form of engagement – say nursing or horticulture?

You’re going to want to get this right!

So, to plan your application and give it the best chance to avoid getting tangled up, come along to one of WorkAccord’s Vic Labour Hire Licensing: “Up-Close & Personal” masterclasses or advanced workshops as we work through these issues.

Better still, come along to them all!

You can find out more about the series on our Eventbrite registration pages:

  • Masterclass #1 Reach and Limitations (23/04/19 from 9.00 am to 12:00 pm)
  • Masterclass #2 Managing Adverse Outcomes (23/04/19 from 1.00 pm to 4:00 pm)
  • Workshop #3 Prepare Your Application (3/05/19 – morning and afternoon sessions)

I hope to see you there.

Andrew C. Wood

* Labour Hire Licensing Regulations 2018 (Vic), regs 11 and 12.

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