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IR Society WA SHAM CONTRACTING – Are individual contractors being abolished?. Eleanor Jewell Senior Associate Norton Rose Australia 2 May 2012. Agenda. Relevance of distinction between employees and contractors Implications of contracting arrangements Risks of contracting arrangements
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National Employment Standards
Unfair and unlawful dismissal
Implied duty of good faith
Ownership of Intellectual Property
Workplace health and safety
National Privacy Principles
BargainingRelevance of the distinction
Fair Work Ombudsman v Centennial Financial Services 2011 FMCA 459
“… something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.”: Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 
Section 357 (misrepresenting employment as independent contractor relationship)
Section 358 (dismissal)
in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.
Section 359 (misrepresentation to engage as independent contractor)
CFMEU v Nubrick Pty Ltd  FMCA 981
Hours of work
Mode of remuneration
Provision and maintenance of equipment, materials and resources
Provision of paid leave, superannuation, workers compensation and PAYG tax
Ability to delegate
Obligation to work
Ability to terminate
Company, trust or partnership contractor
Case example 1: Roy Morgan Research Pty Ltd v Commissioner of Taxation  FCAFC 52
“In my opinion, on no sensible view of the evidence could it be said that the interviewers were conducting such a business on their own account, as distinct from participating in the business of the appellant”
Case example 2: Fair Work Ombudsman v Centennial Financial Services 2011 FMCA 459Multifactor Test
Vabu Pty Ltd v Commissioner of Taxation (1996) 81 IR 150
Viewed as a practical matter:
(i) is the person performing the work an entrepreneur who owns and operates a business; and
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”
“Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.
(2) For this purpose, a person involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
-ABCC v Rapid Formwork Constructions Pty Ltd  FMCA 649