Robyn Anderson posted on August 03, 2010 15:25
Fair Work Australia (FWA) have recently ruled that an independent contractor has access to unfair dismissal after finding the contractor was really an employee.
This was despite the fact that the worker (who was engaged to run training programmes on behalf of a training company) had an ABN, submitted tax invoices, was not paid any employment entitlements, determined his own hours and had his own business, business card and business email address.
The company submitted that the worker was an independent contractor operating under a contracting agreement and that he had “a significant degree of autonomy to make his own decisions regarding the method of training and assessment”. Nor was he required to wear a uniform identifying him as an employee.
The company did however supervise work performance in so far as the competency outcomes and the assessment methods were regulated by training company to “ensure trainees achieve the competency required by the training packages”. This is important under training company’s Registered Training Organisation (RTO) registration. Apart from this, the worker was able to develop his own training methods.
The worker was required by the training company to attend its offices to make “sure that the work had been done… and that we had the requirements covered.” He was invited to, and attended, staff meetings and team meetings to be briefed on any significant changes and was required to follow the training company's Code of Conduct, policies, etc.
FWA considered that all the evidence supported the conclusion that training company exercised control or had the right to control over how the worker performed his work. Commissioner Gooly noted that the training company "allocated work to [the worker] and supervised the work" and went on to state that while the worker could determine the method by which he trained the trainees, the curriculum and assessment methods were dictated by the training company.
Also at the heart of this case was the fact that FWA ruled that the trainer was an integral part of training company's business and FWA did not believe he was conducting his own business when performing work.
This case shows the importance correctly classifying your workforce and makes it clear that regardless of calling a worker an independent contractor and that they supply you an ABN it is the true nature of the relationship that is considered. Remember the old adage - if it walks like a duck, quacks like a duck, it is a duck despite you calling it any other name.