Dismissal of Builder Contractor

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					                        THE WAR FOR
                          TALENT
                         ESCALATES
                                           ANDREW BLAND
                                             20 April 2006



PRIA RCG Breakfast Seminar 20 April 2006          © BlandsLaw 2006
 INTRODUCTION

 Unfair dismissal vUnlawful dismissal under new Workchoices law

 NSW ruling on Casuals and its implications

 Current legal and financial responsibilities to independent contractors

 Anticipated changes under the Independent Contractors Act

 Implications of Workchoices




 PRIA RCG Breakfast Seminar 20 April 2006   © BlandsLaw 2006
Unfair Dismissal
   Workplace Relations Act now applies to all corporations
   Corporations with 100 employees or less will be exempt from
   unfair dismissal laws
   Such corporations may terminate employment for whatever
   reason without needing to provide warnings
   However, must still not terminate for unlawful reasons (see below)
   Corporations with more than 100 employees will still be liable
   for unfair dismissal laws
          The qualifying period is extended from 3 to 6 months for bring a claim
          and claims cannot be made where terminated for operational reasons




PRIA RCG Breakfast Seminar 20 April 2006     © BlandsLaw 2006
Unlawful Dismissal

          No employer can terminate for a prohibited reason.
           These are
    1.     Temporary absence due to illness or injury
    2.     Temporary absence for volunteer work
    3.     Discriminatory reasons-sex,age,gender,sexual preference,marital
           status,pregnancy etc
    4.     Refusal to terminate or enter an AWA
    5.     Absence due to parental leave




PRIA RCG Breakfast Seminar 20 April 2006    © BlandsLaw 2006
NSW Ruling on Conversion of Casuals
  NSW IRC handed down decision on 28 February 2006
  (Secure employment test case)

  Gives casuals the right to request permanent employment after
  six (6) months

  Only for award employees

  Will not apply to businesses under Workchoices (corporations)




PRIA RCG Breakfast Seminar 20 April 2006   © BlandsLaw 2006
    Dealing with independent contractors
    - current requirements
           Self employed contractors now account for 10% of
            workforce
           Contractor or worker? Tests include:
                 Control
                 Insurance
                 leave entitlements
                 ability to delegate
                 other sources of income
                 trading as a business name
                 liability issues
           There are a number of implications if the relationship is a
            sham




PRIA RCG Breakfast Seminar 20 April 2006       © BlandsLaw 2006
    Dealing with independent contractors
    - current requirements
           Payroll - if it is not a contractor you may be liable to large
            penalties
           Taxation-the contractor will be liable for PAYE if not contractor
           workers compensation-deemed worker provisions may apply

           OH&S - will be liable in any event. Employers are liable
            for the acts of contractors and are responsible for their
            safety
           Will not exclude responsibility for discrimination claims




PRIA RCG Breakfast Seminar 20 April 2006      © BlandsLaw 2006
 Proposed Independent Contractors Act

   Expected in May 2006
   Seeks to change relationships with independent contractors
   Stated aims are as follows:
   Review the definition of employer,employee and contractor-common law
   approach is being considered
   Prevent award and agreements from containing clauses that put limits on
   independent contractors
   Legislating contractual arrangements under commercial law not industrial
   law-implications for s106 of Industrial Relations Act (NSW)
   Addressing state legislation and deeming provisions




PRIA RCG Breakfast Seminar 20 April 2006   © BlandsLaw 2006
 CASE STUDY 1
  Ingrid has a business which employees sixty two people. Most of her
  employees are hardworking and perform well.
  However there are three employees who have been with the company
  several years and Ingrid is not satisfied with their performance.
  Previously Ingrid had been advised that she was required to provide
  at least three warnings to these employees about their performance and
  was required to give them ample opportunity to improve their
  performance.
  Ingrid has not provided any formal warnings to these employees
  however she believes that if she did this she would not be able to
  terminate these employees for at least six months.
  Under work choices Ingrid is able to terminate the employment of
  these people immediately without providing them with any such
  warnings.

PRIA RCG Breakfast Seminar 20 April 2006   © BlandsLaw 2006
 CASE STUDY 2
  Avery Pty Ltd is a company that employees over 100 people.
  It has an employee who has been with the company for 5 months
  at the time that the amendments to the legislation commence.
  Avery believes that it can terminate the services of this employee
  and that they will be exempt from unfair dismissal laws.
  However, as the employee was employed at the time of the
  commencement of the amendments he will still be able to bring a
  claim.




PRIA RCG Breakfast Seminar 20 April 2006   © BlandsLaw 2006
 CASE STUDY 3
  Beckett Pty Ltd has an employee(Jim) that is probably the best at
  their job of all of its employees. However Beckett believes Jim is
  a “trouble maker” as he called the Anti Discrimination board on
  previous occasions resulting from a dispute with an employee. Jim
  also caused “trouble” for the company by complaining about
  some bullying that has been going on with another employee.
  The company is fed up and decides to terminate Jim and gives no
  reason for it. Jim complains that it is because of his whistle
  blowing activities. In the dispute an internal memo is found from
  the Managing Director which says “this guy is causing us grief at
  the discrimination tribunal. It cannot be allowed to continue. I
  want him gone.”
   Jim will be successful in bringing a unlawful termination claim
  against Beckett.
PRIA RCG Breakfast Seminar 20 April 2006   © BlandsLaw 2006
 CASE STUDY 4
 Smith will work 4 days per week-Mondays,Tuesdays,Wednesdays and
 Thursdays
 Smith will be required to work at least 9 to 5 and perhaps longer at the
 reasonable request of Jones
 Smith will be paid by the hour
 Smith will be able to determine the way in which the job is done but Jones
 will determine when it is to be completed by
 Smith is free to engage with other companies outside of the hours outlined
 by Jones
 Smith must carry his own Public Liability and Workcover Insurance
 Smith will invoice Jones monthly
 The contract clearly states that Smith is not an employee
 Jones will allow Smith to use other labour on request.these will be
 employees of Jones
  IS SMITH A CONTRACTOR OR EMPOYEE?
PRIA RCG Breakfast Seminar 20 April 2006   © BlandsLaw 2006
 About the Presenter
Andrew Bland is the proprietor of BlandsLaw, a firm specialising in Workplace
and Business Law.
Formerly a Partner at PricewaterhouseCoopers Legal, Andrew has been
advising Businesses on all aspects of their Workplace and Commercial issues.
Andrew works with Business and provides advice that is strategic, commercial
and legally sound with the aim of implementing a framework from which his
clients can work.
Some examples of the advice Andrew provides are:
Drafting Employment Contracts and Employment Policies
Advising on Workplace Restructuring options
Drafting Independent Contractor Agreements
Advising Employers on workplace disputes
Strategic advice on workplace options
Advising and drafting of Commercial Sale & Purchase Agreements
Drafting Service Contracts
                                                              Contact details:
Setting up Franchise Businesses
                                                               Andrew Bland
                                                               Mob 0401 244 418
                                                               Email abland@blandslaw.com.au
PRIA RCG Breakfast Seminar 20 April 2006        © BlandsLaw 2006

				
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