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If I worked only for a pty ltd company in NSW Australia for

Customer Question
3 years and the basis...
If I worked only for a pty ltd company in NSW Australia for 3 years and the basis of my employment is unclear (ie contractor they say versus employee I say), am I entitled to Superannuation, Holiday Loading etc?

Just a few other details : I was asked to provide invoices 6 months after commencing working with this company because they did not want to pay employee benefits. I did provide a few invoices then stopped issuing them. The company still owes me for wages and has not reimbursed my expenses. I was not given any notice either that my contract or employment was terminated.

What should I do?

Is this sham contracting?
Are they liable under the TPA or any other laws? if so which ones?

Can you recommend next steps.

Thanks if you can assist.
Best Michael
Submitted: 4 years ago.Category: Australia Law
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6/17/2013
Solicitor: Brisbane-Lawyer, Solicitor - Admitted 2005 replied 4 years ago
Brisbane-Lawyer
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
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If I worked only for a pty ltd company in NSW Australia for 3 years and the basis of my employment is unclear (ie contractor they say versus employee I say), am I entitled to Superannuation, Holiday Loading etc?

No, you would only be entitled to things like superannuation and annual leave if you are an employee. Not if you are a contractor. And because you provided them with invoices, you are clearly a contractor. That is the way the Court would see it.

So if this company doesn't pay what you are owed, then you will have to commence proceedings against them. You would do this by making a claim against them in the Civil Claims Division of the Local Court.

To lodge a small claim, you need to file a Statement of Claim with the Court. This court form is available from the Court by calling (02) 9287 7923. Call that number and ask them to send the form out to you. Then fill it in with the filing fee and return it to the Court. They will stamp 2 copies, one of which you must give to the company.

When the Court receives the form with a filing fee, then they will set the matter down for hearing before a judge.

At the hearing each party is given the opportunity to make submissions based on the evidence. You won't need a lawyer but can have one if you want. Most small claims hearings take less than an hour to complete and most do not involve lawyers.

If you're satisfied with the results of your question, then I'll ask you to please provide positive feedback so that I will get credit for the time spent on your question.
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Customer reply replied 4 years ago


Ive already seen another lawyer who I cannot afford at the moment. Based on my advice I would have to say you are not correct. You are making assumptions.


 


Secondly, the test on the ATO website would tell a different story.

Solicitor: Brisbane-Lawyer, Solicitor - Admitted 2005 replied 4 years ago
Sometimes lawyers don't always agree. I am sorry I couldn't tell you what you wanted to hear.

I suggest you contact the Fair Work Australia on 1300 799 675 and see if they agree whether you are a contractor or an employee. Don't forget to tell them that you invoiced the Pty Ltd because that is important information.

If they tell you the same thing I have, then please take it in stride and leave positive feedback for me.
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