Supplying Invoices doesn’t substantiate contractor status

Supplying Invoices doesn’t substantiate contractor status.png

Supplying Invoices doesn’t substantiate contractor status

The Fair Work Commission has rejected a claim from an employer in the entertainment industry that the provision of invoices meant a sacked worker was an independent contractor and therefore could not submit an unfair dismissal application.

The employee had been engaged by Shannon Equipment (the employer) since 30 July 2018 to provide `pick a box’ games at various venues across regional Victoria. The relationship ended via a text message from the employer on 23 November 2020.

Despite the absence of any written contract, the worker was paid $60 per hour, typically for a two-hour shift. All equipment and bookings for the entertainment were arranged and provided by the employer. Thus, the employee would simply submit an invoice and their ABN to the employer to claim payment and make her own arrangements for taxation.

In his assessment of the relationship, Deputy President Val Gostencink noted that the employee had no practical control over how the venues were selected or how the work was conducted. The employee was provided with a specific set of instructions on how to set up and host each game.

Although she could reject work, she was required to notify her employer if she was going to be absent from work, and she could not organise someone else to replace her. She was not required to provide any tools of trade or equipment in performing the work.

As Deputy President Gostencink commented,

“It seems to me to be the case that the relevant indicators of an employment relationship are present in this case. The overwhelming weight of the relevant indicia point towards an employment relationship. This is also consistent with the substance of the relationship, as one of employment, notwithstanding the invoicing arrangement and the acquiescence to that practice by the Applicant”.

The matter has been referred back to the Commission for further hearings.

ES v CS (C2020/9005) 21 May 2021

For queries about engaging employees, independent contractors, or any other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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