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The Fair Work Ombudsman recently instigated court action which challenged whether the worker was a Contractor or an Employee – FWO believe they are employees and the persons were underpaid.
A purchaser should ensure they are paying enough
A developing perspective being applied to all businesses is: that when you are purchasing services, the amount you are paying to your supplier has to be at least what would allow the persons providing the service to receive a minimum wage.
A supermarket business, contracts with another business to provide people to collect trolleys, the supermarket must ensure they are paying the supplying business an amount that would cover at least minimum wage and any applicable award entitlements (including leave and overtime amounts) the trolley collecting person is entitled to receive. The supermarket cannot turn a blind eye to any underpayment of the intermediary business.
Contractors should not be paid less than employees
In the case where a transport company (Boske Road Transport) was paying individuals (who were engaged as contractors) less than they would have received had they been employees, FWO alleges that the drivers were underpaid as they were in fact employees covered by the Road Transport and Distribution Award 2010, and for one worker in relation to a period of long-distance work, the Road Transport (Long Distance Operations) Award 2010.
It is alleged three of the workers were underpaid hourly overtime rates and public holiday rates, and not paid for any annual or personal leave. The long-distance driver, who had the largest alleged underpayment, was also allegedly underpaid through failures to pay for loading and unloading duties and to meet a cents-per-kilometre entitlement.
As a general principle, this cannot be right.
Were they employees?
The Employee vs Contractor laws have 6 factors which together determine whether a person is to be treated as an employee or a contract for the different obligations: PAYG Withholding, Superannuation, Fair Work Award application.
- Control – who really determines how, when and where a task is to be performed
- Integration – are they really an integral part of the business
- Results – is the basis of the engagement purely payment for time or to produce a result
- Delegation – can the worker delegate the task to another person
- Terms of engagement – how was the engagement established
- Risk – who pays for corrections
No one test determines the relationship and not all tests are necessary for a definite conclusion as to the status of the engagement.
Not all contractor relationships are “sham-contractors”
The Boske Road Transport case
Fair Work is challenging the company on the basis that the individuals are employees.
If they are then the law definitely applies the award and minimum payment applies.
Increasingly individuals who are contracted themselves or through another entity will still have to be paid at least what they would have been paid if they were employed directly. Another application of the “Better-Off Overall” Test.