NSW Independent Contractor - What are My Rights?

[Gondul]

I am a chiropractor currently working as (supposedly) an independent contractor for another chiropractor. I started working at this place over 1 1/2 year ago after selling my own business.

I was offered this position when this person gained knowledge of the sale. I have known this chiropractor for some time, and did trust that he had good and honest intentions for the offer he made me. We had many discussions over a period of 2 months, however, nothing was put down on paper.

I did ask for a contract but it never seemed to happen. I am now in a position where the promises he made me are either not being kept and slowly changed. He has now employed 2 more chiropractors. He is in complete control of who gets what ie. new patients, meaning he directly controls your ability to grow your business and also your income.

I am finding that all the patients now get funneled to the latest employee and I am slowly going backward, being in effect pushed out. I might add that I brought with me clients that followed me after the sale of my own business when I started my position. I would just like some help on what my rights are, if any, and where do I turn for help and advice.

 

[Tim W]

I'm wondering if you are not really in a "sham contract" arrangement.

Ask yourself these questions:

• Whose patients are they - yours, or the principal's (ie your employer's) ?
  (a good test of that is whether or not you have unrestricted access
  to the files of "your patients", even if centrally stored);
  
  
• Does it have to be you that works?
  For example, if you wanted to send in a locum because you want a holiday,
  or were sick, can you just send one of your own choosing,
  or do you need some kind of consent from your employer?
  
  
• Are you liable for your own professional indemnity and (maybe) public liability insurance?
  
  
• What are the arrangements for sick leave?
  
  
• Do you get a pay packet, or do you bill on a Tax Invoice?
  
  
• Is there a dispute resolution clause in the contract?
  
  
• Who does your tax?

You're quite right to be dubious about this arrangement.

 

[Gondul]

I'm wondering if you are not really in a "sham contract" arrangement.

Ask yourself these questions:

- Whose patients are they - yours, or the principal's (ie your employer's) ?
(a good test of that is whether or not you have unrestricted access
to the files of "your patients", even if centrally stored);

As there is no contract I am not sure?

- Does it have to be you that works?

For example, if you wanted to send in a locum because you want a holiday, or were sick, can you just send one of your own choosing, or do you need some kind of consent from your employer?

I would definitely need consent to put someone else in my place - it would cause major conflict.

- Are you liable for your own professional indemnity and (maybe) public liability insurance?

Yes I have to pay my own PI insurance.

- What are the arrangements for sick leave?

No sick leave, no holiday pay, no super.

- Do you get a pay packet, or do you bill on a Tax Invoice?

All the monies received go into his account, including the cash which he pockets. I then send him an invoice for my services, less what I supposedly pay in "rent".

- Is there a dispute resolution clause in the contract?

There is no contract. I suspect that if I insisted on a contract now it would be vastly different to the verbal agreement we made 1 1/2 years ago.

- Who does your tax?

I do my own tax and PAYG statements.

You're quite right to be dubious about this arrangement.

Where do I turn?

 

[Rod]

There's a chance you are an employee in the eyes of the law despite being paid what is effectively piece work. Can be trickier to sort out with medical professionals as locums are an established part of the industry.

But a lawyer will need to go through the details to get a better idea. You may also be able to call your association to see if there are any 'industry rules' that can help you work out your status.

 

[Rod]

The majority of your answers point to you being a contractor. Chances are you have little rights.

You can negotiate a new agreement and put it in writing, and you have the right to leave and go elsewhere unimpeded by any restraint of trade clause. Other than that unless he has promised a minimum amount of work, preferably something you can prove, you may not have any other rights.