#13 - What makes a contractor a contractor?
Employment Law for the Time Poor
Release Date: 08/13/2020
Employment Relations Podcast #38 – Wage Theft: Go Directly to Jail?
Employment Law for the Time Poor
One of the few constants in life and business is change. Come 1 January 2025, a significant shift will take place for national system employers when criminal wage theft provisions come into effect because of changes in the Closing Loopholes Reforms. But what does “wage theft” mean, and in what circumstances will criminal prosecution occur? In this episode of Piper Alderman’s Employment Law for the Time Poor Podcast, Partners Emily Haar, Principal Chris Hartigan, and Senior Associate Jack Bourke discuss: The differences between civil underpayments and criminal wage theft; ...
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#37 – Closing Loopholes No. 2: Considering Complexities
Employment Law for the Time Poor
February 2024 has been a big month for legislative change, particularly in the contentious arena of industrial relations. Seemingly out of nowhere, the Government announced it had done a deal on the remaining areas of proposed reform that did not make it into the Closing Loopholes Act 2023. Adding to the surprise, the Closing Loopholes No. 2 Bill contained significant and substantial amendments to what had previously been proposed, including the much discussed “right to disconnect” provisions. In this episode of Employment Law for the Time Poor, join Professor Andrew...
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#36 – What does a psychosocially safe workplace look like?
Employment Law for the Time Poor
Following the 2018 Boland Review into the model Work Health and Safety provisions, workplace psychosocial safety has squarely been on the policy agenda. Combined with recent changes as a result of the Respect@Work Report, the clear policy position, and expectation of society, is one of employers taking responsibility and being accountable for having workplaces that are both physically and psychologically safe. In South Australia, its version of amendments to the Work Health and Safety regulations to deal with psychosocial safety commence on 25 December 2023, following similar...
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#35 – The Governance of Decision Making in the Post-Qantas Environment
Employment Law for the Time Poor
The recent High Court decision in Qantas v TWU focussed on the question of how the general protections in the Fair Work Act 2009 (Cth) work in circumstances where employees did not presently have particular workplace rights (in that case the right to take industrial action), but would have those rights in the future if not for the adverse action being taken. While that analysis has rightly been the subject of a lot of interest, the outcome in that case turned on the other key concept in general protections claims – the “reverse onus” where employers need to prove that an unlawful...
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#34 – Do You See What I See? The Closing Loopholes Bill
Employment Law for the Time Poor
In comments to the National Press Club on 31 August 2023, Industrial Relations Minister Tony Burke said that the Closing Loopholes Bill will address four key “pillars”: wage theft, casual conversion, labour hire, and “employee-like workers”, and that the Bill would not “reach into every workplace”. While the Bill certainly deals with those four matters, there is so much more to unpack. In this special long-form episode of Employment Law for the Time Poor, join Professor Andrew Stewart and Emily Haar as they discuss the considerable proposed reforms presented by this...
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#33 - National WHS Update: Industrial Manslaughter Laws and the Prohibition of Insurance
Employment Law for the Time Poor
Industrial manslaughter may soon be an offence in almost all Australian jurisdictions. Recent amendments in certain jurisdictions have also introduced the recommendation of the 2019 Boland Review to prohibit insurance and indemnities for WHS penalties. In this episode of Employment Law for the Time Poor, join Emily Haar, Partner, and Joseph Hyde, Associate, for a review of the current status of these provisions, with a particular focus on the South Australian proposed industrial manslaughter legislation. With Labor governments having been recently elected in South Australia, New...
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#32 – Addressing the Gender Pay Gap and Yet More Amendments to the Fair Work Act: What Employers Need to Know
Employment Law for the Time Poor
International Women’s Day is observed internationally in March. In this episode of Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar, Partner as they discuss recent amendments to federal legislation designed to address pay equity for women, including the Secure Jobs, Better Pay Act and the recently passed Closing the Gender Pay Gap Act. They also talk about the next batch of changes to the Fair Work Act in the new Protecting Worker Entitlements Bill. Organisations will need to be across these many changes (with more still to come) to...
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#31 - Consultation: Who, What, Where, and How?
Employment Law for the Time Poor
Organisations have legal obligations to consult with their staff in particular situations. But what does that actually mean? In this episode of Employment Law for the Time Poor, join Emily Haar, Partner and Emily Slaytor, Special Counsel in a discussion around the requirements to consult flowing from work health and safety legislation, Awards and Enterprise Agreements. They discuss how various consultation obligations differ, what the Courts and the Fair Work Commission say is required to comply, and what is not consultation.
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#30 - Industrial Relations in 2022 and Beyond: Year in Review
Employment Law for the Time Poor
It’s summertime in Australia and things are winding down, right? Perhaps not! In this episode of Employment Law for the Time Poor join the National Employment Relations team for a review of what was in 2022, and what may be to come in 2023, including: the Secure Jobs, Better Pay Act; the Respect@Work reforms; the prohibition of pay secrecy; Fair Work Ombudsman compliance measures; wage theft; the impacts of Jamsek and Personnel Contracting on workforce management; increases to Commonwealth penalty unit amounts; and the proposed South Australian industrial manslaughter provisions.
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#29 - Secure Jobs Better Pay: What is in the final version?
Employment Law for the Time Poor
Following our last discussion, in this edition Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar (Partner), as they discuss some of the additional changes arising from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, and how the changes will impact organisations. In particular, they discuss: the delayed commencement of the fixed term contract limitations; required reviews of the amendments and Modern Awards; and multi-employer bargaining and the various hurdles to be overcome where single interest declarations are sought by...
info_outlineIn Episode 13 of our Employment Law for the Time Poor podcast, Professor Andrew Stewart and Emily Haar consider consider four recent cases on the vexed issue of whether a worker is an independent contractor or an employee.
As the cases reveal, there are two competing views as to how the multi-factor test is to be applied: does the Court need to look at the substance and reality of the relationship, or do the contractual arrangements reveal the parties’ true intentions about the relationship? To what degree does the “contractor” have to be running a business of their own to legally be an independent contractor?
Professor Andrew Stewart and Emily Haar consider the viability of the “Odco” system of treating labour hire workers as contractors and whether the High Court will be tasked to determine which of the two competing views is the correct method of applying the multi-factor test.
This is an area that is rife with risk for organisations, and knowing the current state of the law is a must-do.
We discuss the following four cases in this podcast episode:
- Dental Corp Pty Ltd v Moffet [2020] FCAFC 118 (16 June)
- Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119 (16 July)
- Eastern Van Services Pty Ltd v Victorian WorkCover Authority [2020] VSCA 154 (12 June)
- CFMMEU v Personnel Contracting Pty Ltd [2020] FCAFC 122 (17 July)