ACT Withholding pay for damages & restraint of trade

[PeanutLuver]

Thanks Peanutluver,
Waiting to see if ATO will make a decision as to if this is an employee arrangement or a legit contract. It is so much of a grey area because of the fact the employer "hires" the premises and equipment to her, making it more like a contract arrangement.
The sham contracting conditions aren't quite met, particularly because of this hire arrangement, but we will try to see if it applies anyway. The restraint of trade part is a no brainer as you can't stop a person earning a living doing the only thing they are qualified to do.

Hi Marko,

Yeah these are two different laws - so what qualifies as a contractor is different under different laws. A person classes as a worker/employee under ATO legislation, or Workcover legislation, may not be considered an employee under the Fair Work Act, but yes ATO has its own rules about this but doesn't enable a FWO complaint - FWO would have to make their own determination. If the workplace keep few or no records this may make it hard - but FWO may still do a get weak audit if they wanted.

 

[PeanutLuver]

As Rod wrote - first point of call is advice and complaint to FWO - if you make written complaint to FWO but have no luck then you could yourself then perhaps apply to the Act ACAT.

 

[PeanutLuver]

Links to Fair Work Ombudsman pages on Employee versus Contractor topic, and Sham Contracting:


- Welcome to the Fair Work Ombudsman website


- Welcome to the Fair Work Ombudsman website

 

[PeanutLuver]

Hi Marko,

If workspace is rented, what/how do they get/withhold money? Do only they receipt all the money?

 

[Marko]

Now this is the part I don't get. According to the tools that you can use to work out if you are an employee or contractor, especially for the ATO, my wife is categorized as an employee if I the "employer" is answered to "Who is responsible for providing the majority of the equipment, tools, plant, or motor vehicle needed to do the work?". If I insert my the employee it comes out as contractor. But there is no distinction as to what happens if the employer provides them and the employee pays a hire fee to use them. The ATO simply referred me to get a private ruling. But yes, I am waiting for the FWO to reply too.
Now the way it works is the clients pay the business the total cost of service, my wife give sthe business an invoice, the business deducts a "hire fee" from the total and then pays the remainder to my wife. Then my wife has to pay her GST and super. In some cases where private health covers the cost, my wife is paid directly from them and then I think she has to pay the employer the hire fee component. It's a messy way to do things.
I think this hiring arrangement is how the business gets away with calling employees independent contractors.
As for getting the outstanding money paid, after we see the legal aid people I think letter of demand etc will have to take place, so yes perhaps it'll escalate to ACAT but with us being the instigator this time. There is nothing in the contract stating they can hold money for damages, nor a dispute resolution process. I mean they have made the assumption of guilt without providing any serious evidence except their own opinion, so until fault is ascertained, they shouldn't have the right to not pay. At least that is my take on it. Just imagine if an EFTPOS terminal had caught on fire and burned the reception desk down at a cost of say $4000. How could they hold a contractor's pay for seven weeks to cover damages if they had no solid evidence? Perhaps public liability insurance may cover these kind of things, but why damage your future premiums if it hasn't been proven to be your fault? Anyway, I'll keep you guys updated on progress as it unfolds.