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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43205
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I am an independent contractor I recently entered into a

Customer Question

Hi. I am an independent contractor I recently entered into a contract with a business
JA: What state are you in? It matters because laws vary by location.
Customer: WA
JA: Has anything been filed or reported?
Customer: nO
JA: Anything else you want the lawyer to know before I connect you?
Customer: nO
Submitted: 3 months ago.
Category: Australia Law
Expert:  Leon replied 3 months ago.

My name is ***** ***** I am a NSW Solicitor. I will do my best to assist you with your question.

Expert:  Leon replied 3 months ago.

What is your question?

Customer: replied 3 months ago.
I am an independent contractor in WA
Expert:  Leon replied 3 months ago.

Yes I saw that but I am niot sire what you wish to know?

Customer: replied 3 months ago.
I have recently signed a contract with a business. One of their clauses indicates that I must seek approval for leave. As a contractor, I believe we do not need to seek approval, we can take time off when we want, and notify the business at the earliest possible. I confirmed this with an online chat with the Australian Government Business Law. I believe this would be an 'unfair' contract as I am not receiving my contractor benefits whilst being treated as one. What can I do?
Customer: replied 3 months ago.
The business is demanding that I must seek approval for leave. I am unsure they know the rights that an independent contractor has.
Expert:  Leon replied 3 months ago.

Good Afternoon

You are correct, you do not need to seek their approval. Did you only work for them?

Customer: replied 3 months ago.
I contract with other businesses as well, and one of the other businesses agrees with this as well, i.e. I do not need to seek approval.
Expert:  Leon replied 3 months ago.

Can you email me the contract***@******.***

Customer: replied 3 months ago.
I can, but I would kindly like assurance that this information would be kept confidential as of now
Expert:  Leon replied 3 months ago.

If you email I will be getting it after it is checked by justanswer.

Do not upload it here though because it will be public

Customer: replied 3 months ago.
Okay, how long would justanswer take to check it? I assume they will keep this information private?
Expert:  Leon replied 3 months ago.

I should take 24 hours for me to get it.

Customer: replied 3 months ago.
I have sent you the email with the contract. Is there any assistance you can give me right now?
Expert:  Leon replied 3 months ago.

Generally if you have signed the contract you have to comply with its terms. But I need to actually see the whole contract to see if it is reasonable. Also it may be one where you are not a contractor but an employee and it si a sham contract.

Customer: replied 3 months ago.
I currently work for this company. Is there anything I can do? I have signed this contract and agreed to their "terms and conditions", so would I legally be able to do anything about it?
Expert:  Leon replied 3 months ago.

Generally if you have signed the contract you have to comply with its terms. But I need to actually see the whole contract to see if it is reasonable. Also it may be one where you are not a contractor but an employee and it si a sham contract.

Customer: replied 3 months ago.
I thought that, however I am pretty sure that I am a contractor. If the signed "terms" are not compliant with Australian Government Business Law i.e. do not take into account the rights of a contractor, then can something legally be done about this?
Expert:  Leon replied 3 months ago.

Good Afternoon

If they take away your rights then you can argue unfair contract terms.

You cannot just say I am not complying with them.

https://www.accc.gov.au/business/business-rights-protections/unfair-contract-terms

You are involved in the supply of services and you are covered.

Customer: replied 3 months ago.
What does the last statement mean? I am involved in the supply of services - yes, I am covered? What do you mean?
Customer: replied 3 months ago.
The link you sent me says it covers for contract entered or renewed on or after 12 Nov 2016... I have entered a contract prior to this....
Customer: replied 3 months ago.
Will you contact me via email tomorrow when you receive the email with the contract?
Customer: replied 3 months ago.
Leon, are you here?
Expert:  Leon replied 3 months ago.

My apologies I had to take a call.

It is there to confirm that you are covered by the unfair contract terms

As a contractor you supply your services to others.

The act changes then

Here is more information

http://asic.gov.au/about-asic/what-we-do/laws-we-administer/unfair-contract-terms-law/

ASIC deals with your matter

I will contact you once I receive the contract

Expert:  Leon replied 3 months ago.

I have received the contract and will get back to you once I read it.

Expert:  Leon replied 3 months ago.

I have read the contract and even though it says you are a contractor it comes across as an employee emplyer relationship.

Do you rent the room form the Principal?

Do you have your own clients or are they all the clients of the principal?

Customer: replied 3 months ago.
I do not rent the room. They are clients of the principal. However, I am paid a commision. That is 45% of the total earnings of the patients I see. I have no expenses at the clinic.
Expert:  Leon replied 3 months ago.

You may be paid a commission but based on what I have read, they provide you the room, the equipment and also set your hours.

They have control and it is more and employee / employer relationship than contractor.

In relation to the leave, based on what I have read you would have to tell them you need the leave because there is a roster and they have to fill your position.

They would be liable to pay your superannuation and also cover you for negligence.

This contract is a sham contract and if it were to go to court the court would not find a relationship where you are a contractor. The principal controls your working ours who you see and supplies you with the tools of trade. You are not a contractor.

You donot have control of who you see and for how long and when.

So having said that they have a right to approve your leave and you have to check and see if you are paid correctly.

This contract would not hold up as a contractor relationship in court.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards
Leon