People Smartz Blog

In October 2009, I wrote a blog article regarding the increasing risk businesses were putting themselves under when utilising independent contractors in their business.

This article was titled Independent Contractors - Benefit or Risk to Your Business? and you can read it again by clicking on the link - I strongly recommend you do.

An independent contractor is someone who is self-employed and contracts his or her services to clients - most often other businesses.

Unfortunately, over the years a number of employers have used this as an avenue to avoid their obligations to their employees in respect to things like accruals, superannuation and other entitlements.  These type of arrangements are called "Sham Contracts".

There has been a very strong push against Sham Contracting by the Fair Work Ombudsman over the last 12 months.  In particular, these investigations have revolved around three industries - cleaning, hair and beauty and call centres.

These audits found that 23% of businesses had "mis-classified" employees as independent contractors.  In other words - nearly a quarter of those companies audited were mis-classifying employees as independent contractors.

A recent experience of company I know is an example of how these laws can effect a business:

About this time last year, I met with a gentleman who had started a commercial cleaning company. Based on common practice in the industry, he had engaged a good number of independent contractors to service his growing client base.

Now, he had developed a business model designed around several main "objectives" including high cleaning standards, good quality cleaning products and a highly organised workforce.

The problem was that these "objectives" also defined the relationship he had with his "independent contractors".

Over the past 12 months, he has worked hard to grow his business.  During this time, he had also worked, with the aid of a specialist company, to set up his independent contractor arrangements and bring them within the requirements of the legislation.

During that period he has also been audited by the Fair Work Ombudsman and successfully negotiated their investigation.  

However, he was advised several weeks ago by the company assisting him that they could not continue to assist him (I should point out for very legitimate reasons with no fault on him or his company).

The result was that he could not continue to run his company on the model he had developed - utilising independent contractors.

He was faced with a choice - continue to operate with independent contractors and face potential issues with the law or move his team to an employment arrangement - given his experience with the Fair Work Ombudsman, he decided to abide by the law.

Unfortunately, when he spoke to his independent contractors, they were not willing to move to an employment relationship. 

This left him with only one option - to wind back his business to the point where the work could be handled by himself and his partner.

So the end result - a good number of people are now out of work, a number of businesses are now looking for a new cleaning company and a once thriving, growing business is now "diminishing" in size and operations.

This story highlights how the wrong employment structure can affect your business.  It was never the intention of the Fair Work Ombudsman's activities to create this situation - this is the result of having the wrong structure operating in the first place.

My recommendations from October 2010 still have a strong meaning now and I recommend you consider them in your business: 

"I strongly recommend to my clients before entering into independent contractors arrangements that they closely review the relationship they are forming.  While the benefits of utilising independent contractors are significant, if not structured properly, they also introduce an element of risk to the business."

People Smartz is able to assist businesses with the process of employing independent contractors.  If you have, or are considering, independent contractors in your business - contact us today.

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It is becoming more and more apparent, that no matter how small your business is, you can not avoid your obligations in regards to meeting your employer obligations.

Many thanks to our great friends at Brands Law for this great example of the line of thinking to which our courts are dealing with breaches of the Fair Work Act:

"Back in April 2011, in a case involving underpayment of penalty rates to employees, Magistrate Hawkins said there was a need to "send a message to the community at large and small employers particularly, that the correct entitlements for employees must be paid and that steps must be taken by employers (of all sizes) to ascertain and comply with minimum entitlements (as opposed to ignoring those obligations).

"Compliance should not be seen as the bastion of the large employers with human resources staff and advisory consultants (accountants, consultants, lawyers) behind them"."

In a speech in May 2011, the Fair Work Ombudsman made a point that it "was not sufficient for companies to turn a blind eye and hope that they are meeting their obligations".  He particularly made the point that companies need to make sure that they are resourcing their obligations appropriately.

With this type of language coming from our courts and the Ombudsman, it is very evident and important that all businesses, regardless of size have in place a system for ensuring compliance with their awards, the Fair Work Act and the National Employment Standards.

Our experience with small to medium sized businesses has shown that business people are finding it more and more difficult to manage these obligations.  As we have said in our blog posts before - the system itself is not built for small business.

Unfortunately, it appears that the message from our courts is that small businesses need to manage their obligations similarly to the way they would be handled in big business.  However, small businesses do not have the human resources staff etc to do that!

Understanding your obligations can be difficult and managing them can be time consuming. The place to start is to ensure you are compliant now!

Why not book one of our People and Business Reviews where we can help you identify the actions you can take to ensure you are meeting your obligations.

Book your review today!

People Smartz is proud to have been accredited as an approved consultant for the Jobs Assist Program.

The Queensland State Government is providing grants through approved Consultants for the delivery of advisory and mentoring services to businesses with 10 or more (full time equivalent) employees under the Jobs Assist programme.

The Department of Employment, Economic Development & Innovations (DEEDI) is providing the support intended to help businesses weather the current economic conditions. The financial loss and consequent unemployment caused by business failures is well understood. DEEDI is generously providing funding wherever such assistance is beneficial to sustaining businesses and the retention of employees.

To find out more about eligibility or to apply please contact us for more information today!

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Laws regarding the use of Independent Contractors have been around for quite a few years now.  These laws are designed to provide increased protection against employers who try and avoid their employment obligations by using what are called "Sham" agreements.

Independent contractors run their own business and should be free to negotiate their fees and working arrangements.  They may provide their services to any number of clients.

Employees have set minimum entitlements (payment of wages, annual leave, personal leave etc) and are subject to the control and direction of their employer.

A "sham" agreement occurs when an employer deliberately disguises an employment relationship as an independent contracting arrangement in order to avoid paying an employee his or her entitlements.  It is possible that an employer who makes arrangements in this way could be fined up to $33,000. 

Many businesses I work with enter into independent contractors agreements in order to "benefit" both the business and the person doing the work. There is no intention to deceive or avoid obligations - just an intention to "do the right thing by all" by improving the return to the "employee" and to save the company money.

Unfortunately, this could be opening up a minefield for the business and the independent contractor.  If the arrangement has been made with the intention of avoiding obligations on the businesses part, it can result in fines, back taxes and other costly penalties.  There can also be tax ramifications for the independent contractor.

When reviewing whether the working relationship is one of employment or independent contract, the Fair Work Ombudsman will look at the circumstances.  Things such as how the work is performed, who bears the commercial risk, whether the work is results based or not, who sets the hours of work, whether the individual has a right to delegate work and who provides the equipment used are some of the many factors which can be taken into account.

I strongly recommend to my clients before entering into independent contractors arrangements that they closely review the relationship they are forming.  While the benefits of utilising independent contractors are significant, if not structured properly, they also introduce an element of risk to the business.

People Smartz is able to assist businesses with the process of employing independent contractors.  If you have, or are considering, independent contractors in your business - contact us today.

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