Differentiating Contractors and Employees

Does your business use contractors? The practice of deeming someone a contractor instead of an employee certainly reduces employer liability, but it can increase your legal exposure if the laws aren’t followed, if you inadvertently treat a contractor like an employee and don’t provide the relevant employee benefits and protections.

It can be difficult to determine whether a worker is an employee or an independent contractor and there are a number of factors you will take into account. A good indicator is the level of control you have over the worker, as generally, employers have a higher level of control over the way their employees perform tasks under an employment contract than they do over independent contractors.

Here are a few general principles to help you the distinction between contracting and traditional employment :

Employee	Contractor
An employee can be told when, where, and how to work	Free agent sets own hours, duration, place of work
An employee can be told to be available at specific times and engage in specific tasks at specific times. You can indicate specific times that specific tasks will be performed.	You agree on mutually acceptable deadlines – time frames are agreed, not dictated. Depends on availability and other workloads the contractor may choose to take on
An employer can dictate work methods and the manner of work to an employee, such as whether the work gets done all at once or in parts, or whether the person works on one project at a time.	You agree on mutually acceptable deliverables and outcomes, not method and manner. A contractor can take as much or as little work from whatever sources they see fit.
An employee cannot sub contract or pay someone else to do the work	A contractor is free to subcontract the work to someone else
The employer provides all or most of the equipment required	The contractor provides all or most of the equipment required and does not receive and allowance or reimbursement of costs
You can require an employee to attend various meetings	A contractor cannot be required to attend meetings, but can be invited.
The employer is legally responsible for the work performed by the worker, and liable for the cost of rectifying any defects	The contractor is legally responsible for their work and liable for the cost of rectifying any defect in their work.
You can prevail upon an employee’s specific use of time and where and when they work. You can require an employee take vacations at certain times, etc.	A contractor is free to accept or refuse work from whatever source they choose, work any time of the day or night, take holiday leave at their discretion.

Irrespective of the worker’s status as employee or contractor, there are still circumstances in which they may need to be treated as an employee.

Superannuation Superannuation Guarantee obligations will arise if the contract between you and the worker is wholly or principally for labour performed. A contract is wholly or principally for labour performed if the value of the labour component of the contract is more than 50% of the value of the contract as a whole. The issue will generally arise only where the worker is a sole trader providing tax invoices bearing an ABN for their services.

WorkCover Generally, workers’ compensation legislation in each State or Territory requires you to pay workers’ compensation premiums in respect of any ‘worker’.  In some circumstances, the legislation also treats contractors as workers. So, even if your worker is classified as a contractor, legislation may require you to ensure the worker is covered by a workers’ compensation policy.

Payroll Tax is payable for ‘wages’, and in some circumstances, payments to contractors are treated as wages for the purposes of payroll tax. For example, if a contractor only has one client other than you in a financial year, it is likely that you will have to treat the contractor the same as your employees and include the payments you make to the contractor in your payroll tax return.

Health and Safety As an employer, you are responsible of the health and safety of all workers under your management and control, regardless of whether they are classed as employees or independent contractors.

Discrimination As an employer or principal, you will be held ‘vicariously’ liable for acts occurring in your workplace even if you had nothing to do with the acts in question. This is regardless of whether the worker involved is your contractor or your employee , and this liability will exist unless you can demonstrate that you took reasonable precautions to prevent the acts from occurring.

If you are unsure of your employee’s status, or would like more information on contractors and employees, please contact Annette at End2End Business Solutions on (02) 8977 4002 for a customised solution.

Liability for employees’ actions outside the workplace

Did you know that in certain circumstances, as an employer, you can be held vicariously liable for your employee's action or conduct outside of work hours?

   

Vicarious liability is the responsibility you have for the actions of your employees and workers towards others during work hours or in other work related circumstances. If your employee/workers’ actions are found to be unlawful, both you and the employee/ worker who behaved inappropriately may be held responsible.

For example, here are a number of ways you can be held liable for your employees’ actions out of work hours:

• Under OHS law. Even at out of hours’ work functions, the employer still has a responsibility to abide by their obligations under OH &S legislation. Hence you are still required to provide a safe environment for your employees and guests, even away from the workplace and outside of normal working hours. Under existing State health and safety legislation, the employer is liable for all workers while they are carrying out work, wherever that may be.

• Under Work Cover legislation. If an employee suffers an injury at a work-related function out of normal working hours, they may still be able to claim under your workers’ compensation insurance.

• Under Discrimination legislation. If an employee engages in sexual harassment or some other form of misconduct/undesirable behaviour in a situation connected to their employment, such as an office Christmas party, you could be held vicariously liable under anti-discrimination legislation, if you have not taken reasonable steps to prevent the conduct

• Under Privacy laws. If an employee accesses records of personal information stored at the workplace after work hours, any breaches of privacy laws will be taken to have been engaged in by your company if the conduct of the employee was within the scope of their authority given to them by your company; and if your company did not take reasonable precautions or exercise due diligence to avoid the conduct.

However, there are several steps your business can implement to help prevent being found to be vicariously liable for an employees’ out of hours behaviour:

1. Check your current OH&S and Anti-Discrimination and Privacy policies and ensure they are up to date, and amend if required.
2. Ensure your employees have a good understanding of exactly when workplace behaviour rules will apply outside the usual workplace or working hours, and ensure that they are aware of their responsibilities as an employee representing your company during out of office hours.
3. Understand your obligations under your Workers Compensation Insurance policies.
4. Ensure your employees understand the guidelines on accessing personal information in the workplace during and after working hours.
5. Ensure that you train employees about the policies and the procedures you have in place, and their obligations.
6. Apply your policies consistently through appropriate disciplinary action.

If you take these steps, you will be able to establish that you took reasonable precautions to prevent misconduct – and you should not be held vicariously liable for it.

In many circumstances the fines for non-compliance are significant. To minimize your risk as an employer, you should consider developing proactive compliance policies that will reduce the risk of fines, and have the added benefit of ensuring that your workforce is safe, engaged and productive. Contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies for your business.