What do you think? Is this Sham contracting?

We wanted to refinance the house so I asked my boss if I was a full time employee or a subcontractor.
He said full-time Sub contractor so I need to wait 2 years to borrow. A mate says as a subbie I set my own rates that incorporate entitlements, business expenses ext instead of just being on a lower full time set weekly wage like a employee.

My boss gives me list of jobs each morning, uses his tools, ATM use my car but pulls his trailers, ment to work 7 to 330 but often late with no overtime pay, I wear his uniform, he pays my super and work place insurance.
He just pays me a flat weekly amount and I use my ABN number so after my business expenses I'm only working for $14 a hr lol.


This is straight from fair work:
Employees
The factors that are indicative of an employee are that they:

• have their work directed and controlled by their employer
• work set or standard hours (casual employees hours can vary from week to week)
• usually have an ongoing expectation of work
• bear no financial risk – it’s covered by their employer’s insurance
• are provided by their employer with tools or a tool allowance is provided
• have income tax deducted by their employer
• are paid wages or a salary regularly
• are entitled to paid leave.

Independent contractors
The factors that are indicative of independent contractors are that they:

• have a high level of control over how the work is done, including the choice to hire others to assist
• agree to the hours required to complete the job
• usually engaged for a specific task or time
• bear the risk of making a profit or a loss and usually bears responsibility and liability for poor work or injury and usually have their own insurance
• use their own tools and equipment
• pay their own tax and GST
• have an ABN and submits invoices
• don’t receive paid leave.

You need to consider all of these factors when working out whether you are an employee or an independent contractor. There won’t be one thing on its own that decides whether you are an employee or an independent contractor. Just because you have an ABN or issue invoices doesn’t automatically make you an independent contractor.

Sham contracting
Sham contracting is where a person working as an employee is told they are an independent contractor when they’re not. They will also be treated like an independent contractor in some ways, for example they may be required to have an ABN and submit invoices.

Sham contracting is illegal. It’s illegal to:

• claim an employee is an independent contractor
• say something false to convince an employee to become an independent contractor
• dismiss or threaten to dismiss an employee if they don’t become an independent contractor
• dismiss an employee and hire them as an independent contractor to do the same work.

Is this Sham contacting and what should I do?

 

Best to have a chat to Fair Work directly.

How much are you paid per hour gross? And what industry?

 

Sounds like you are an employee to me, as your income is derived from a single source

 

Gardening at $22 a hour. Then minus expenses, business expenses and allow a bit for holidays and sick days

 

Considering all the evidence I thought so too but he says I'm a subbie probably it's a good tax ride off

 

Hi @Ricki barkham

I thought this was covered off in Getting paid using a abn

Probably worth touching base with Fair Work

 

Tell your employer that it's sham contracting (or that you're better off being an employee), you're getting less than you would If you were employed.

 

So you aren’t receiving holidays or sick days as part of your employment?

 

Nope upto me to take of what I earn

 

Exactly.
I asked for a $20 a day rise and to cover maintenance on my car since I did 8000km in 3 months so up for another service and now new tyres.
And he said no.
So dout I'll get anything unless it's threatened by worksafe.

 

You may wind up being back-paid entitlements through FWA, hope you are keeping good records also hope you don't get caught up with any tax issues

 

Was covered but I thought I was a employee but if I'm a subbie my rate should be higher

 

That's why I'm trying to keep onto of it so it's not a massive ordeal latter

 

The previous thread received a lot of comments saying you may be an employee and strongly recommending you talk to Fair Work Australia. Have you done this yet?

Also in post #31 in the previous thread you mentioned that your boss pays for your petrol. That would be usual for a subbie I think.

Also, your rate seems to have decreased $3 per hour since the last thread!

 

Why Worksafe?

 

I spoke to him last friday after waiting for a week to see him since he was out of the office when I got back to the base to confirm in full-time or subbie and he said subbie so spoke to workplace obusudmon and they said do a survey on fair work website and do a contracting tool whick scored 13 out of 16 as employee so have to talk to fair work on Monday.

I thought I my pay was ment to go up to 25 after 1 month but he refused to put it up. As a emplyemp 22.50 is a accepted rate but as a subbie where I run business expenses minus tax and leave entitlement s it's not.

 

Sorry ment fairwork

 

I believe that you're getting shafted!

You'd earn more flipping burgers....

Regardless of the fair work outcome...give this boss/company the flick and quickly.

 

Thinking about it just have to get another income stream first.