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What are the differences between employee and contractor?

Employment Law News | December 2015

In many cases we are asked by employers whether there are benefits to be gained by changing the status of their employees to contractors or vice versa. Likewise we are often asked by employees or contractors to advise them on the correct status of their engagement to resolve a dispute about liability or entitlements to payments.

There are numerous musings by our Courts about this topic of “employees vs. contractors”. Forum Law can provide a “checklist of characteristics” that may be generally referred to as a guide for those concerned about ascertaining their status or those they employ or with whom they may contract.

The Federal Court has recently made a number of decisions on this point. The importance and significance on these distinctions are becoming for relevant with the “sharing economy” and the trend towards non traditional working relationships in our economy. The recent decisions of Fair Work Ombudsman v. Quest South Perth Holdings Pty. Ltd. (2015) FCR 346 [currently awaiting a decision on appeal] and Tattsbett v. Morrow (2015) 321 ALR 305, have highlighted the following characteristics to be considered in distinguishing an employee vs. a contractor relationship:

  • Is the individual engaged in the conduct of their own business (in the case of a contractor) or is the individual really solely engaged in the business of the “employer”?
  • Is there any “entrepreneurial endeavour” on the part of the individual (to suggest they are a contractor)?
  • The need to consider a number of different aspects of the relationship between the individual worker and the ‘employer’/contractor which is referred to as the “multi-factor test” and these aspects can include:
    • how the individual represents themselves to customers
    • billing arrangements
    • the hours worked, accountability
    • the right to delegate tasks
    • exclusivity
    • insurance arrangements
    • who provides equipment and transport
    • whether the individual can engage their own help and staff.

Contact us at Forum Law professional and experienced lawyers in Sydney’s inner west to discuss any concerns or questions you may have about “characterising” employment or contractor relationships. For advice or assistance with your employment contracts, please contact us on 02 9560 3388 or email us at admin@forumlaw.com.au


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