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Hi My husband & I have worked for a company for 11 years.

Hi My husband & I have...

Hi
My husband & I have worked for a company for 11 years. We are insurance assessors. The basis of our contract is that we receive a % of our billed professional fees to company clients (The fee is generated by our employer to the client and its not us billing. Out of this %, we fund our own superannuation. In this time, we have not been provided with sick pay, holiday pay or long service leave. The company are now wanting is us to sign a formal contract putting us onto a standard salary package. In the eyes of the ATO, we are considered as employees. We are not allowed to work for anyone else apart from our employer. Can you please advise whether we qualify for retrospective holiday pay/long service leave. Many thanks Karen

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Answered in 16 minutes by:

6/9/2010

Solicitor: Leon, Solicitor replied 12 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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HI

Were you issuing Tax Invoices and making deductions as though you were self employed?

Customer reply replied 12 years ago

No. The company bills all our time in their name. We are employees and our employer handles all our tax. We do claim certain things back through the ATO at the end of the year like our cars as we are provided with a car allowance with our employer. Hope that clarifies.

Solicitor: Leon, Solicitor replied 12 years ago

HI

they issue you with a group certificate every financial year?

Customer reply replied 12 years ago

Yes they do.

Solicitor: Leon, Solicitor replied 12 years ago

HI

then all your time there you have acrued Long Service Leave, annual leave, sick leave.

Changing the relationship for payment does not change the history.

You are entitled

I hope this is of assistance

Customer reply replied 12 years ago

Thanks for your help. Can I just ask something else, if we did not agree to the fixed salary and remained on the same terms as we are now, do we still qualify for the entitlements. Works has always said we don't as we get paid a %. In the 11 years, we have never had a paid holiday, sick day and been told that we don't qualify for long service leave. It was only I heard something on the ABC that made me question this. This will be a bun fight and how we go about getting them to meet the entitlements? Thanks Karen

Solicitor: Leon, Solicitor replied 12 years ago

Hi

the entitlements are already yours. When you agree to a fixed salary what happens is the entitlements could be paid at that salary. Which could be lower than you current money.

You should work out what they are worth.

Here is information about LSL in Victoria

Annual leave is 4 weeks per year

If your pay is not a fixed amount every week it is averaged over the last 6 months and the last 4 weeks and you receive the greater amount.

If they deny you your entitlements then you should speak to the Fair Work Ombudsman.

http://www.fwo.gov.au

I hope this is of assistance

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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Leon and 87 other Australia Law Specialists are ready to help you

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Customer reply replied 12 years ago

Sorry can I please ask one more thing. Are we able to pursue them for the holiday pay we have not received for the last 11 years? Would the sick leave that we have never taken acrrue? Would the long service leave apply to when we commenced our employment or when and if we sign a fixed salary contract. Thanks

Solicitor: Leon, Solicitor replied 12 years ago

HI

Sick leave you cannot claim as it is there if you are ill. It has accrued and is there for you. You may need to speak to the Fair Work Ombudsman about the amount that you can accrue.

The Annual Leave you are entitled to. If you did not receive 4 weeks off per year then that is there for you to take.

Long Service applies from the date you commenced with the employer. As you have been with the same employer all these years it has accrued.

I hope this is of assistance

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