NSW Contractor - Would I Qualify for a Redundancy?

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
3 February 2017
4
0
1
Hi there, and thanks in advance!

I have been working with a financial services company for 4.5 years as a contractor. That is, I invoice them monthly and get paid a gross figure based on the days I have worked in the month. I pay my own tax through my abn /acn.

I work Monday to Friday 9 to 5 and I have fixed responsibilities for daily management of a team, as well as management of projects within that team. I manage external relationships with 3rd party providers, I am listed on various company policies and I have business cards with a job title.

There has been a lot of change and staff turn over recently, and I am concerned that my job is at risk. Would I qualify for redundancy? And should I be claiming paid holidays etc?

They exclude me from bonus pool and I don't get paid public holidays etc, although I have had paid volunteering days and education, etc.

Again, many many thanks for any help!
 

Rod

Lawyer
LawTap Verified
27 May 2014
6,786
928
2,894
You are in a grey area and until you go to FWA for a determination you may not know.

Some facts point to you being an employee and entitled to redundancy, some facts point to you being a contractor and not entitled to a redundancy. My guess off the top of my head is that it might be 55/45 in your favour but I've not looked at any recent cases to be any more confident one way or the other.

For the moment assume you will be deemed an employee and see what happens. No point making a big deal if they do not make your position redundant.
 

kimsland

Well-Known Member
6 February 2017
66
6
224
Hi there, and thanks in advance!
There has been a lot of change and staff turn over recently, and I am concerned that my job is at risk. Would I qualify for redundancy? And should I be claiming paid holidays etc?
You have been replied to by an experienced member. But from going in and out of civil cases for 2 years now; my personal view is a contractor will never get redundancy unless of course the business you work for is breaking their own contract with you (lets say they contracted you for 5 years straight and said they didn't need you at 4.5years). But otherwise you are not covered by any employee benefits and especially public holidays.

Therefore I'd say it's more likely your chance of redundancy is 1 in every 100 contractors, and even 1/100 may be a bit high in my view.

Contractors are just not covered by award. Sorry.
 
3 February 2017
4
0
1
Thanks for the input kims. In fact, my contract with the company expired 4 years ago, and I was initially contracted to do a completely different job to what I'm doing now...would that make a difference?
 

Tim W

Lawyer
LawTap Verified
28 April 2014
3,813
711
2,894
Sydney
Thnka for the input kims, Infact my contract with the company expired 4 years ago, and i was initially contracted to do a completely different job to what im doing now...would that make a difference?
Don't worry so much about when the contract itself expired - if you and your "employer" are still conducting yourselves as you did during the contract period, then that will be enough.

Clarify for me - are you an employee, even if paid on commission, or
are you an agent, or
are a bona fide outsourced supplier of a service (sales),
in the same way that a sole trader electrician or cleaner is?

Relevant to the answer to your question is the nature of your employment relationship.
You could be any of the above.
Or you could be a sham contractor, which, based on the limited facts above, I rather suspect.
 
3 February 2017
4
0
1
Thanks Tim, i really appreciate the response.

Well I was initially hired into the finance team for 6 weeks to do some project management. However for the past 4 years or so i have been running the IT team, I have budget control for the department, employees to manage, business cards. I am named as IT manager and am responsible for a number of company policies.

I represented to the financial regulator as being responsible for the IT infrastructure/security of the company etc. I work 9-5, I have signed contracts to service providers on behalf of the company (phone systems, IT systems), and I have a company credit card.

My fear is that there has been a lot of change in the last year or so and I'm a little worried my role might be significantly changed, or indeed they may want to replace me. Then on the flip side, it's also feasible they might want to give me a permanent contract, and I want to be sure I won't sign away the past 5 years entitlements... :)
 

Tim W

Lawyer
LawTap Verified
28 April 2014
3,813
711
2,894
Sydney
If you have all of those things, and
work in that format, and you are accruing entitlements,
then they will be hard pressed to show that you are a contractor.