VIC Common Law - Provide Independent Contractor with Original Agreement?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Jkc

Member
13 January 2017
2
0
1
We have an independent contractor, who has been facilitating in our RTO (registered training organisation) for 3 and a bit years, as well as doing other work outside of our teaching schedule, which is around 70 days per year with us. He teaches in one of our venues in another state, only marks the work in class and doesn't do any follow up or resubmission marking.

He does consulting for other companies, is setting up his own business and teaching for another training provider. Due to him fundamentally breaching his contract, we were required to terminate him. We do not believe he meets any area of employment, due to him working for others, invoicing us after each week, teaching in his own style, choosing the dates around other commitments and being paid well above award wage, as a facilitator.

He is planning to take us to Fair Work Australia and wants a copy of his independent contractor agreement, which he is calling his employment contract. I have been told by our lawyers that we are not obliged to hand over a copy of his agreement, as it is up to the independent contractor to keep a record of this, only if he was an employee would we have an obligation to hand a contract over.

Can you please confirm under common law if this is the case please, as we don't want to do the wrong thing but we also have had a lot of serious breaches he has committed and need to treat him as the contractor that he was signed up to be?

Your help would be very much appreciated.
 

Rod

Lawyer
LawTap Verified
27 May 2014
6,758
926
2,894
... and need to treat him as the contractor that he was signed up to be?

Not sure what you mean by this. Handing him a copy of a contract does not make him an employee. Not being obliged to do something, doesn't necessarily mean you shouldn't do something.

He can take you to FWA with or without the contract. If he goes to FWA without having the contract, you will have to produce it anyway to prove your story. You do not do your case in favours by withholding an important relevant document from the other side, even if he should have his own copy.

If it was me in your position I'd be tempted to tell him to pay for a copy, say $100, for the effort of sending something he should have anyway. With the comment that he was given a copy at the time of signing and that you are under no obligation to send him a copy.
 

Serge Gorval

Well-Known Member
LawTap Verified
2 November 2015
201
12
614
Sydney
lawtap.com
Hi JKC

Seems like he is asserting himself to be an employee when as opposed to a contractor.

Your position is correct insofar that the employer is obliged to keep and maintain employee records, take a look at s535 FWA and the regulations for more info.

There are certain pitfalls that exist in IR/employee argument. Feel free to get in touch for a confidential chat if you would like to know more.
 

Jkc

Member
13 January 2017
2
0
1
Thanks so much Serge. Yes, he's been very difficult. We have an independent contractor agreement with him. He has been terminated due to fundamental breaches of contract and he's trying to pull the "Fair Work" card on us. We just want to make sure we're doing things correctly.

Thank you for your info and I'll keep your details in mind. Much appreciated :)