AUSTRALIAN LIVESTOCK & PROPERTY AGENTS ASSOCIATION LTD.

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1 AUSTRALIAN LIVESTOCK & PROPERTY AGENTS ASSOCIATION LTD. INDEPENDENT CONTRACTORS KIT FOR LIVESTOCK & PROPERTY AGENTS D ISCL A IM E R The Australian Livestock & Property Agents Association Ltd (ALPA) believes the content in this manual is correct at time of printing. ALPA does not represent or warrant that the manual is free from errors or deletions that may have a material impact on the use of this content in commercial activities. The statements and conclusions in this manual are of a general nature for the information of members. ALPA accepts no responsibility for the accuracy of any of the opinions or information contained in this manual. Members should rely upon their own enquiries in their state and the circumstances of their own business in making decisions concerning their own interest. This document is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner or pursuant to a licence granted by the copyright owner. V ALPA 1

2 ENGAGING CONTRACTORS: Livestock and Property Agents often engage contractors for various roles to assist during peak times, or because a specialist skill is required to fulfill clients needs. Agents who hire a contractor are required to comply with various workplace laws that apply to employment. This Independent Contractor Kit is designed for use by ALPA members. It will provide you as an agent with a better understanding of the laws that apply to contractors in your work place. This document can also be used to relay your expectations of the various laws which apply to contract employment. It is important to know that; a person can have an ABN and say they are a contractor but the law may still class them as an employee. Taxation, workers compensation and superannuation obligations as well as employee entitlements such as annual leave and long service leave will apply. So how do you decide if the law will support someone s claim to being a contractor? Sometimes it will be easy to work out, for instance in the case of a contractor who provides a cattle tagging or drafting service to you and others in the district frequently at particular locations. At other times it may not be so clear, for instance if person comes in and does some drafting work on behalf of you. The common law says that if you can control the way work is done, where it is done and when it is done, the person is an employee. If not, they are an independent contractor. Over time the courts have determined a number of common law tests which can help you to determine what it means to be in control, and therefore if the worker is an employee or contractor. No one test determines whether control exists. Some tests will indicate employment and others will point to independent contracting. The courts weigh up all of the tests and decide if on balance the total picture points to employment or independent contracting. We recommend you use a simple Common Law Control Test to determine whether the person is an employee or not. ALPA has translated the decision making process into a series of questions available on page 3. The Control Test will indicate to you employee or contractor to treat accordingly. You should address a number of matters when hiring an independent contractor to protect yourself, and to ensure that the person has complied with their obligations under the law. An independent contractor compliance Checklist is available on page 4 & 5. It provides details of the obligations which can arise when you engage contractors and suggestions as to how you should address each issue. In some states and territories agents who engage independent contractors may be liable for workers compensation. The section on page 9-10 provides details of individual state and territory workers compensation laws as they apply to agents. This kit also summarizes the new Independent Contractor s legislation and how it might apply to an agent. A template Contract for Services to an agent is on pages 6-7 and may be used for all independent contractors. The contract Principal is the person who is engaging the independent contractor, usually the agent. If using a Labour Hire firm they may have their own standard form contract. If this is the case the template contract can still be used as a reference to ensure their contract covers the various obligations. V ALPA 2

3 COMMON LAW CONTROL TEST QUESTIONS TO HELP YOU DECIDE: NUMBER: QUESTIONS TO HELP YOU DECIDE: YES OR NO 1. The person is being employed to achieve an end result. When the job is done they will leave. 2. The person is paid for doing the job rather than by the hour. 3. The person can decide how to perform the work so long as the job gets done. 4. There is no obligation to accept work and the person can reject work if they wish. 5. The person can determine when they do the work so long as the job gets done. 6. The person is responsible for any mistakes made and must fix them at their own expense. 7. The person can delegate some or all of the work to another person so long as the job gets done. 8. The person can employ workers to perform the work. 9. The person provides their own tools and machinery and is responsible for their upkeep / fuel etc 10. The person is paid on the basis of invoices not wages. 11. You do not pay Holiday pay, sick pay and other entitlements. 12. The person pays their own tax. 13. The person has an ABN Number. 14. The person pays their own accident and public liability insurance. 15. The person works for other people as well as you. 16. The person says they are an independent contractor and advertises this fact. If you answer NO to the majority of these questions then the person is more than likely an employee and to be on the safe side you should employ them as such. V ALPA 3

4 CHECKLIST OF OBLIGATIONS WHEN ENGAGING CONTRACTORS: OBLIGATION YOUR RESPONSIBILITY CONTRACTOR'S RESPONSIBILITY PERFORM FURTHER CHECKS ASK TO SEE DOCUMENTARY PROOF DONE ABN YES YES. to provide ABN Ask for the contractors ABN before they start work for you. SUPERANNUATION Possibly. See the section on Superannuation for more detail YES See the section on Superannuation. Your name should be included when the contractor pays the contribution. WORKERS COMPENSATION Possibly. State laws vary as to whether you are responsible for contractors. See Workers Compensation section. YES. If the contractor has employees then they should have workers compensation insurance for those employees. But see below as if the contractor does not have insurance you may be liable. Check with your local Workers Compensation Authority Insist on seeing the contractor s own personal injury insurance. If the contractor has employees insist on seeing documentary evidence of coverage and currency. PUBLIC LIABILITY Possibly. In respect of the location you carry out your business. If the contractor does not have public liability insurance you should not engage them. Ask to see a copy of the policy and check to ensure it covers the work being done for you as a contractor and that it is current. OH&S YES. Any type of employee has the right to a safe workplace and you must provide this. You: Have a duty to ensure persons other than employees are not put at risk ( Contractors) Contractors may be responsible for their own plant and equipment but the Principle can refuse them to commence work if the equipment is not up to standard or they (the contractor) fail to comply with onsite OHS requirements. Clearly label, notify and restrict areas of the workplace (no go zones) Provide safe access and egress and advise the contractor of any known hazards - underground / overhead power lines, ect that may impact the work. V ALPA 4 YES. The contractor is responsible for ensuring any equipment used in that role is safe and operated safely.

5 Continued V ALPA 5

6 OBLIGATION YOUR RESPONSIBILITY CONTRACTOR'S RESPONSIBILITY PERFORM FURTHER CHECKS ASK TO SEE DOCUMENTARY PROOF DONE IMMIGRATION NO. To avoid problems you should insist as part of the contract that the contractor only employ people who can prove they have right to work in Australia YES. If a contractor is supplying employees it is their responsibility to perform work rights checks. See the section on Illegal Workers. See the Contacts List for details of how to perform work rights checks yourself. Insist on seeing copies of work rights checks done by the contractor. AWARD RATES & ENTITLEMENTS NO. But to avoid problems you should insist as part of the contract that aware rates and entitlements are paid. YES. You can ask to see time books and wages records. V ALPA 6

7 CONTRACT FOR SERVICES IN AN AGENTS WORKPLACE: The CONTRACTOR (full name and trading name of Contractor)... ABN No.... HEREBY AGREES with the PRINCIPAL (full name and trading name of Principal/Owner) ABN No....to perform the following WORK (insert clear description of the work) On/at the PRINCIPAL'S (Agent s) PLACE OF WORK at (address of location/s) At the PRICE of (insert price per task/ lump sum / NOT hourly or weekly rate) The CONTRACTOR AGREES to carry out the work in a proper and workmanlike manner to the satisfaction of the Principal. 2. The CONTRACTOR AGREES to complete the work not later than (insert completion date) The CONTRACTOR AGREES to supply all plant materials and labour needed for the work to be completed. 4. The CONTRACTOR AGREES that he/she is responsible for quality of work and must remedy any defects. 5. The CONTRACTOR AGREES that no representations have been made that this is a contract of employment and the CONTRACTOR FURTHER AGREES that he/she is not an employee of the Principal. 6. The CONTRACTOR AGREES that the Principal is not responsible for the payment of any workers compensation or superannuation or any employee entitlements for the Contractor including paid annual leave, paid public holidays and sick leave. 7. The CONTRACTOR AGREES that he/she is responsible for arranging and paying all accident, sickness and income protection insurance he/she requires. V ALPA 7

8 CONTRACT FOR SERVICES IN AN AGENTS WORKPLACE (pg2): 9. The CONTRACTOR AGREES that he/she is responsible for arranging and paying workers compensation in respect of any employees he/she may employ and the CONTRACTOR UNDERTAKES to provide evidence of such payments to the Principal. 10. The CONTRACTOR AGREES that he/she is responsible for arranging and paying superannuation contributions in respect of any employees he/she may employ and the CONTRACTOR UNDERTAKES to include the Principal as a joint payee on whose behalf payments are made to the superannuation fund. 11. The CONTRACTOR UNDERTAKES that any employees employed by him/her have the right to work in Australia, that appropriate visa and Work Rights checks have been made and the CONTRACTOR UNDERTAKES to provide evidence of such Work Rights to the Principal upon request. 12. The CONTRACTOR UNDERTAKES to pay wages and entitlements in accordance with the correct industrial award or agreement to any employees he/she may employ and will indemnify the Principal against any claims by or any liability to any of the Contractor's employees. 13. The CONTRACTOR UNDERTAKES that before receiving payment for any work done he/she will produce to the Principal wages books showing that all wages have been paid to all employees employed by the Contractor. 14. The PRINCIPAL agrees to pay the Contractor, at the completion of the work or according to the following progress payment schedule (insert details of progress payments if applicable)... DATED THIS...day of SIGNED...(CONTRACTOR) SIGNED...(PRINCIPAL/AGENT) SIGNED...(WITNESS) V ALPA 8

9 OBLIGATIONS UNDER OTHER LAWS which may apply when engaging contractors There are a number of obligations under other laws which may apply to the contract. Each of these laws has their own tests to determine if the working relationship is an employment relationship or an independent contracting arrangement. The tests may be different to the common law Employment Status Test and may use parts only of the Control Test to determine if a person is said to be an employee or a contractor under the particular law. The following laws may be relevant to the independent contracting arrangement. SUPERANNUATION: The federal Superannuation Guarantee legislation requires all employers to make superannuation contributions, currently 9% of ordinary time earnings, for all employees. Under this legislation, some independent contractors are said to be employees and the contract principal (the agent) is therefore required to pay superannuation contributions, regardless of whether the common law Employment Status Test has been met. If all three of the following criteria describe the contractor then the contractor will be regarded as an employee for superannuation laws: 1. The person is paid wholly or principally for their labour and skills (the contract can be for labour and supply of materials or goods); 2. The person is required by the contract to perform the work personally and cannot delegate the task to other workers, and 3. The person is not paid to produce a result. Note: If the independent contractor trades as a company, a trust or partnership, the contract will not be regarded as a contract for a person s labour or skills under the superannuation laws and there will be no liability for superannuation payments. If the test applies to the person you have engaged, you must pay superannuation contributions at the rate of 9% of the labour component of the contract to a complying superannuation fund. The penalties for breach of superannuation requirements are severe and professional advice should be obtained where any doubts about whether the law applies. Where a contractor employs workers to do the contract work, it can be difficult to decide whether you or the contractor will be said to be the employer and liable for superannuation contributions. It is suggested that to avoid possible penalties you insist that the contractor notify the relevant superannuation fund that the contributions for these employees are on your behalf as well as on the contractor s behalf. It does not cost the contractor any more and protects you. Agents engaging independent contractors for work on the location of the agents work should use the Contract For Services on the previous page to list such details. V ALPA 8

10 WORKERS COMPENSATION: Workers compensation is the responsibility of state and territory governments. Every state and territory has its own legislation which has different rules as to who is responsible to take out insurance cover for workers compensation. The responsibility for workers compensation depends upon how the term worker is defined by the relevant state or territory legislation. In some cases this will mean that a contractor which meets the common law test will nevertheless be regarded as a worker (or employee) and the contract principal (the agent) as an employer and therefore responsible and liable under workers compensation laws. The following section gives details of when state and territory workers compensation obligations could apply to agents employing independent contractors for work. WARNING: This summary only gives detail of how the laws apply to agents employing contractors for agent work. These laws may change. The following is correct as at the time of printing. Agents should confirm, with their state or territory workers compensation authority, that there have been no changes to this legislation before entering into any contracts. New South Wales- In NSW contractors are said to be workers, and workers compensation obligations will apply, if all three of the following apply: (i) The contract is for work of more than $10.00 in value, and (ii) The person does not carry out a trade or business in their own name or under a business or firm name, and (iii) The person does not subcontract the work or employ other workers. Rural Work In NSW some contractors doing rural work are also classed as workers, regardless of the common law determining test. Rural work is defined to mean only the following types of work; sugar cane cutting and work transporting sugar cane to mills; clearing land of stumps or logs, Construction or demolition of fences or yards. The other types of work defined as rural work involve the supply of timber. Contractors in these areas of rural work will be classed as workers if they do some of the work themselves, even if they employ workers, and the agent engaging them will be responsible under workers compensation laws. V ALPA 9

11 In Queensland the following tests are used to determine if a contractor will be classed as a worker and therefore if workers compensation obligations will apply. 1. Contractors are taken to be workers unless they meet all three of the following criteria. (i) The contractor is paid to achieve a specified result or outcome, and (ii) The contractor provides all of the plant, tools and equipment needed for the job, and (iii) The contractor is liable under the contract to rectify defects. 2. If the contractor has a personal services determination under the Income Tax Assessment Act 1997 they will not be regarded as a worker even if they do not meet all three criteria at number 1 above. * See Personal Services Income Legislation below 3. If a contractor does not fall within the definition at number 1 or 2 above, the contractor will still be classed as a worker if the following applies: (i) The work is not part of a trade or business carried on by the contractor individually or by partnership and (ii) The contractor does not subcontract the work, or (iii) The contractor does not employ a worker, or (iv) The contractor employs a worker but performs some of the work personally. Note: The following people are specifically excluded and will not be classed as workers in Queensland: (i) Company directors who work as an employee of the company; (ii) Trustees of a trust who work as an employee of a trust; (iii) partners who work as an employee of a partnership. Queensland- Victoria- In Victoria there are several indicative test guides which are used to determine the independence of the contractor, to decide if contractors will be classed as workers Under workers compensation laws. The other test is the objective test which guides the examiner to the results and then applying those to determine whether there is a relevant contract or not. Test one Contractors are classed as workers if the contractor is a natural person (as opposed to a company) and; (i) The work is not part of a trade or business regularly carried on by them under their name or a business name, and (ii) The person either performs all of the work, or (iii) Subcontracts or employs workers for some of the work and performs the rest of the work personally. Note: If the contract is with a partnership and one or more of the partners do the work, the contractor will be classed as a worker under workers compensation laws. V ALPA 10

12 The Indicative Test is used to help to decide if a contractor has been carrying on business. The test takes a number of variables and weights them according to a scale to show the general practice of the contractor in a financial year. Contract principals who are uncertain as to whether the contractor can be classified as carrying on business should contact the Victorian WorkCover Authority or their individual WorkCover agent who will help them apply the Indicative Test. Test two The aim of the second test is to ensure that bona fide contractors who provide services to the public generally will not be regarded as workers under workers compensation laws. The test is complex and there are a number of exemptions. Advice should be sought from the Victorian WorkCover Authority or individual WorkCover agent before entering into any contracts which are for work alone (no goods being provided) if the contractor does not contract to the public generally as part of their business. Important Note: Regardless of whether the contractor is classed as a worker, if any of a contractor s employees are injured and the contractor does not have insurance, the contract principal (the agent) will be taken to be the employer and be liable under the workers compensation laws. It is therefore extremely important to insist upon seeing evidence of workers compensation insurance before any work begins. The provisions in the Act operate as a sought of pyramid, S5 defines workers, then there are sections deeming occupations, s8 deals with natural persons, s9 is a general determining factor on the relationships and provides certain exemptions, and s10 & 10a pick up where the contractor does not have insurance for their workers, the principal becomes liable. Because a person is not a worker under one section that does not mean they will not be a worker for the purposes of premium or claims under another section. There is also the risk that being uninsured could leave a party open to the full cost recovery of a claim as well as the penalties for being uninsured. There are various tests some of which have been highlighted please visit Contractor Guidelines for further information. In South Australia, except for some specific industries unrelated to farming (e.g. the construction industry), the workers compensation law uses the common law determine test to determine whether a person is a worker. Important Note: If a contractor employs workers, but is not registered as an employer under the act, the contract principal (the agent) will be taken to be the employer of those workers and be liable under workers compensation laws. It is therefore extremely important to insist upon seeing evidence of workers compensation insurance before any work begins. South Australia- Tasmania- The Workers Rehabilitation and Compensation Act 1988 classes contractors as workers for workers compensation laws if all of following three criteria are met; (i) The contract is for work in excess of $100.00, and (ii) The contractor does not carry on a trade or business in their own name or a business name, and (iii) The contractor does not subcontract the work or employ workers to do the work. V ALPA 11

13 Note: If the contractor has their own valid personal accident insurance they will not be taken to be a worker. The contractor must, by law, tell the contract principal (the agent) whether they have/don t have personal accident insurance. Western Australia- The definition of worker under workers compensation laws is different to the common law control test and may apply to contractors in farming industry. If the following two criteria are met the contractor will be classed as a worker (i) The work is for the contract principal s (the agent s) trade or business, and (ii) The payment is mainly for personal manual labour or services. Important Note: Both the contract principal (the agent) and the contractor are considered to be the employer of any workers the contractor may employ and an injured worker can claim against either or both. Northern Territory- All contractors who perform work or services for another person are classed as workers under workers compensation laws unless they have given the contract principal (the agent) their ABN in writing and there has been no agreement between them that the ABN does not apply to the contractor s work. There are exceptions to this rule for some specific industries. Please use the contacts list to find this out. Australian Capital Territory- In the ACT, contractors who are engaged on a regular and systematic basis or engaged with an expectation of engagement on a regular and systematic basis, are classed as workers under workers compensation laws. The following matters are used to help decide what a regular and systematic basis is: (i) The terms of all relevant contracts; (ii) The working relationship between the contract principal (the agent) and the contractor and all associated circumstances; (iii) The period or periods of the engagement; (iv) The frequency of work; (v) The number of hours worked; (vi) The type of work; (vii) Normal arrangements for someone engaged to perform that type of work. There are exceptions to this rule for some specific industries. Please use the contacts list to find this out. V ALPA 12

14 PERSONAL SERVICES INCOME LEGISLATION: The Personal Services Income Legislation contains a series of tests which are used by the ATO to decide whether a contractor can be treated as a business for tax purposes. If the contractor meets the tests they will receive a Personal Services Business Determination from the ATO. Personal services income, is income which is mainly payment for effort or skill. Note: A Personal Services Determination does not mean that the contractor will be an independent contractor at common law or for the purposes of the Independent Contractors Act. THE INDEPENDENT CONTRACTORS ACT: The Independent Contractors Act 2006 (Cwlth) commenced on 1 March The main impact of this legislation for agents and their clients is the creation of federal unfair contracts laws which set up a new system for challenging the terms of work contracts. The act uses a definition of independent contractor which is the same as the common law control test. The act also overrides state industrial laws (this does not include amongst others, workers compensation laws, OH&S laws and discrimination laws) which say some types of contractors are employees regardless of whether the common law control test applies. However, these some of these changes are not relevant to the farming industry (and agents) because the relevant state laws never applied to contractors engaged on farms. UNFAIR CONTRACTS: The new unfair contracts laws prevent contractors from using state and territory unfair contracts laws if at least one of the parties to the contract trades as a company and the contract is for performance of work, other than domestic or private work. However, independent contractors which trade as companies and employ others to do the work, cannot take advantage of the federal unfair contracts laws. To be eligible, the contract must relate to work being done by working directors or family members of directors only. Independent contractors who operate as sole traders can take advantage of the laws only if the contract principal trades as a company. The Independent Contractors Act also applies as follows: if at least one party is a resident in a territory; if at least one party is a company that is registered in a territory; if the work to be performed is in a territory; if the contract is entered into in a territory; If a party to the contract is a Commonwealth authority. The federal Magistrates Court can now hear cases about unfair contract terms and has the power to vary, or even set aside, contracts it finds to be unfair. In deciding whether a contract is unfair the court must consider the following: the relative bargaining strengths of the parties to the contract; any undue influence, pressure or unfair tactics which may have been used; whether the payment to the independent contractor is less than an employee doing the same work would have received; any other relevant matters. V ALPA 13

15 THE WORKPLACE RELATIONS ACT SHAM CONTRACTS: The Workplace Relations Act has been amended to prevent employers from engaging employees as contractors just to avoid paying employee entitlements. These are called sham contracts. It is now an offence to do any of the following and penalties of up to $33, apply: dismiss an employee for the sole or main purpose of engaging them as an independent contractor; represent an employment relationship as independent contracting; make a false statement for the purpose of influencing or persuading an individual to enter into an independent contract. This legislation reinforces the need for agents to be very careful when engaging people as independent contractors to work for them. ILLEGAL WORKERS: Agents engaging contractors to work should be aware of the illegal workers laws which come into effect in August Illegal workers are non-australian citizens whose visa prohibit or restrict their right to work in Australia. From August 2007 it will be an offence knowingly or recklessly to: allow an illegal worker to work; Refer an illegal worker for work with another business. Penalties for individuals who are convicted of these offences are up to $13, and two years imprisonment while companies face fines of up to $66, per illegal worker. Agents can also be liable in cases where there is an independent contracting arrangement. In addition, if a contractor does not meet the common law control test, any workers brought to their property to work with the contractor could be taken to be the agent s employees. If these employees are illegal workers the agent could face criminal charges for employing them. In the case of labour hire, providing the labour hire company is genuinely in the business of hiring out workers, the labour hire company rather than the agent would be liable. However, because of the serious nature of these offences, agents should insist that the labour hire company provide written evidence of work rights. (see below). V ALPA 14

16 HOW TO CHECK WORK RIGHTS: From August 2007 all employers should check the work rights of all employees. If employees refuse they should not be employed. Checking the work rights of all employees will help to avoid any allegations of discrimination. The following documents should be sighted and copies kept: the person s passport and visa; evidence of Australian citizenship such as a passport, birth certificate or certificate of citizenship, plus photo identification which proves the person is the one identified by the document. If these documents are not available employers can check work rights by , fax or telephone. This is a free service which is available 24 hours, seven days a week. Employers with internet access can use the Entitlement Verification Online (EVO) at The government guarantees to return results almost immediately. Employers without internet access can use the Work Rights Faxback Facility on fax number or the Employer's Work Rights Checking Line on telephone no If these checks cannot be done before the person needs to start work, employers have a period of 48 hours to conduct any checks. This situation could apply in circumstances where a large number of workers are being hired at a saleyard at the same time. Employers relying on using the 48-hour checking period will need to have records of the date and time when the employee started work so they can prove when the 48-hour period began and ended. Providing the checks are begun within 48 hours of an employee starting work and the employer does not know the person is an illegal worker, the Department of Immigration and Citizenship has said that they will not be prosecuted, even if the employee turns out to be an illegal worker. Employers who discover an employee is an illegal worker must end the working relationship immediately. V ALPA 15

17 CONTACTS LIST FOR INDEPENDENT CONTRACTORS KIT: ORGANISATION TELEPHONE WEBSITE WORKERS COMPENSATION Queensland New South Wales ACT (02) Victoria Tasmania South Australia Western Australia TAXATION SUPERANNUATION IMMIGRATION/WORK RIGHTS AWARD WAGES STATE Entitlement Verification Online (EVO) Work Rights Faxback Facility Employer's Work Rights Checking Line telephone This is a 24 hour 7 day service (within Victoria) (local call cost) (outside Victoria) V ALPA 16

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