On Monday 06 June 2011 11:23:40 david wrote: > [some tests, which are relevant sometimes, deleted] > > To make matters more complicated, different instrumentalities have > different tests as to what makes someone an independent contractor, for > instance workcover and the ATO.
There are about half a dozen different sets of tests, depending on what particular area of law you are dealing with. Off the top of my head I can think of the common law tests, the workers' compensation tests, the payroll tax tests, the alienation of personal income (income tax) tests, and the superannuation tests. Not all of these are strictly speaking tests of whether somebody is an employee, but are conceptually closely related. In the case of the ATO, it has to use at least 3 different sets of tests in different contexts. So answering the question in one context (even within the same agency) does not necessarily give you the right answer for other contexts. The Fair Work Act (which is where the sham contracting provisions are) uses the common law tests, which are also, unfortunately, the most difficult tests to apply. There is a large grey area, and different courts and tribunals (and judges and tribunal members) lean to a different side of the grey area. Fair Work Australia, for instance, tends to lean much more in favour of saying somebody is an employee rather than a contractor. Regards, Troy Rollo Solicitor Parry Carroll Commercial Lawyers Direct: (02) 8257 3177 Fax: (02) 9221 1375 Switch: (02) 9221 3899 E-mail: [email protected] Web: www.parrycarroll.com.au Liability limited by a scheme approved under Professional Standards Legislation This message and any attachments are confidential to Parry Carroll. If you have received it my mistake, please let us know by reply and then delete it from your system. You must not copy the message, alter it or disclose its contents to anyone. Thank you. -- SLUG - Sydney Linux User's Group Mailing List - http://slug.org.au/ Subscription info and FAQs: http://slug.org.au/faq/mailinglists.html
