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Common questions regarding Employment and an Independent Contractor

Disclaimer: This content has been prepared by third party lawyers, not by ARAG nor by the Insurer. It is intended to provide a general guide to the subject matter and is not intended to constitute legal advice, and you should not rely on this information as a substitute for obtaining your own legal advice. If any of the below issues apply to you, then you should obtain legal advice about your specific circumstances. ARAG and the Insurer disclaim any liability for damages howsoever arising out of or in connection with the use and/or reference to any of this content.

Published on 01.07.2020.

I am unsure whether I am classified as an employee or an independent contractor. What are the differences?

This depends on several factors. For example, your remuneration, obligation to work, hours of work and income tax are all relevant. Consideration will also be given to how you and your employer have defined your relationship in contract (although this is certainly not definitive), the nature of your working relationship and whether you are conducting trade of your own or serving your employer’s business.

Generally, independent contractors have more control over their work because they are contracted for services. In contrast, the contract between an employer and an employee is an agreement of their service.

Can I receive employee entitlements as an independent contractor?

Unless you negotiate for certain entitlements to be included in your contract, you cannot receive the same entitlements as employees. You will not be entitled to paid leave or termination notice and may have to make your own superannuation contributions.

I am constantly micro-managed by my boss. Does this count as bullying?

If your boss is managing you in a reasonable manner, it is unlikely that their management will be considered bulling. However, if they are micro-managing you with an intention to bully, it might. You should keep a record of the instances with times and dates.

You should also review your workplace policies, particularly the anti-bullying and harassment policy, to see how your workplace deals with these issues, including the avenue to make confidential complaints.

Can my employer extend my probation period?

Your employer cannot make this decision unless it is provided for in your contract or you consent to it. In other words, your employer cannot simply decide that your probation period will be extended on their own accord.

They may propose an extended period, which you have the right to accept or refuse.

I suffer from domestic violence at my home. I find it hard to concentrate at work after an episode. Do I have any workplace rights?

Yes, you do. All employees, irrespective of whether they are casual, part-time or full time, can claim 5 days of unpaid leave for domestic violence every year. Some employers may provide paid leave if your contract covers it. You should review your workplace policies, as domestic violence policies are often included.

I applied for a job at a firm. I have the relevant qualifications and have even attained post-graduate education. However, the owner has said they are unwilling to employ me because I am pregnant and intend to take paid parental leave after I give birth. Are they allowed to do this?

You are protected by the law from discrimination based on certain attributes, including pregnancy and future carer’s responsibilities. You should contact the Fair Work Ombudsman if you wish to lodge an application or speak to somebody about your options.

I have made some mistakes in a few of my reports at work. I underwent some additional training to address this but unfortunately have been unable to improve. My employers have said that they want to reduce my working hours as a result. Are they discriminating against me?

Their decision appears to be based on work performance rather than your personal characteristics. As a result, this is unlikely to be considered discrimination. It instead relates to the inherent requirements of your job and the necessary standard of work required.

I want to go on a holiday with my family, but my contract specifies that I am a casual employee. I work regular hours every week and have definite shifts. Am I entitled to paid annual leave?

You should contact your employer to discuss changing your contracted employment from casual to part-time or full-time. Since you work regular hours every week and have guaranteed shifts, you are better characterised as a part-time or full-time employee, depending on the number of hours you work. This means that you will no longer receive casual loading but will be entitled to paid leave.

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