{"id":1898,"date":"2019-07-24T09:00:46","date_gmt":"2019-07-23T23:00:46","guid":{"rendered":"http:\/\/blog.amt.org.au\/?p=1898"},"modified":"2019-07-23T11:33:17","modified_gmt":"2019-07-23T01:33:17","slug":"when-is-a-contractor-not-a-contractor","status":"publish","type":"post","link":"https:\/\/blog.amt.org.au\/index.php\/2019\/07\/24\/when-is-a-contractor-not-a-contractor\/","title":{"rendered":"When is a Contractor Not a Contractor?"},"content":{"rendered":"\n

By Rebecca Barnett<\/h2>\n\n\n\n

“The problem is that wages on public holidays and weekends greatly exceed the opportunity for profit … it’s just not a good business practice to be paying penalty rates.<\/em>” <\/p>George Calombaris<\/cite><\/blockquote>\n\n\n\n

When George Calombaris made that observation back in 2012<\/a>, he probably had no idea just how hard (and expensively) it would come back to bite him in the bum. $7.8 million in wage theft to repay later, George has found himself in a spot of bother.<\/p>\n\n\n\n

And now there\u2019s trouble brewing for another famous celebrity chef as well<\/a>. We certainly picked a topical time to talk about employment entitlements on the AMT blog! If you missed Part 1, you should go back and read that first<\/a>. <\/p>\n\n\n\n

Round 6<\/h4>\n\n\n\n

Hands up those who have ever been paid penalty rates for weekend or public holiday work? <\/p>\n\n\n\n

Perhaps the time has come for massage therapists to unionise. In September 2017, 8.5% of us were employed under the Award. Last month, that percentage had dropped to 6. WTAF?*<\/p>\n\n\n\n

Somewhat unsurprisingly, the most common area of employment inquiry to AMT Head Office isn\u2019t about the Award (because there\u2019s so freakin\u2019 few of us on it) but rather about being engaged as a subcontractor. <\/p>\n\n\n\n

Subcontracting is the most common form of engagement for massage therapists but it is fraught with areas of grey, both for the contractor and the business the contractor is providing services to. <\/p>\n\n\n\n

\"\"<\/figure><\/div>\n\n\n\n

Unscrupulous businesses may seek to engage therapists under sham contracting arrangements <\/a>to avoid paying the kind of entitlements that our celebrity chef George is not fond of, like penalty rates, annual leave, personal leave and superannuation. <\/p>\n\n\n\n

Some businesses seem to labour under the false expectation that workers should share their commercial risks by effectively working below minimum wage.<\/strong> <\/p>\n\n\n\n

Determining whether a worker is a subcontractor rather than an employee is not straightforward or simple though. It is a complex decision-making process that involves taking into account the full context in which duties are being performed and \u2018the totality of the relationship<\/em>\u2019:<\/p>\n\n\n\n

“The Fair Work Act takes the common law (based on case law precedent) view which is that the reality and the totality of the relationship between the employer and the person doing the work are the determining factors for deciding whether an employment relationship exists or that of an independent contracting relationship. <\/em>The written terms of the contract or agreement are a consideration, to see if they reflect the reality, but are not conclusive.<\/em><\/strong> The Court will consider the reality of the relationship of primary importance.<\/em>” <\/p>Andersons Solicitors<\/a><\/cite><\/blockquote>\n\n\n\n

Because of this nuance and the need to unpack the \u2018totality of the relationship\u2019, it is pretty much impossible to give specific insight or support when massage therapists ask questions about their employment status on AMT\u2019s Facebook group page<\/a>, which has been a fairly common occurrence over the past five years.<\/p>\n\n\n\n

\"\"<\/figure><\/div>\n\n\n\n

Employsure provides some broad tips<\/a> on how to identify whether someone is genuinely engaged as an independent contractor. If you are a contractor and you answer yes to any of the following questions, the nature of your employment relationship is probably being misrepresented:<\/p>\n\n\n\n