Hello,
After reading some information from the Fair Work Ombudsman and ATO website, I believe I am treated incorrectly as a contractor rather than an employee.
I wish to file a complain but I am confused. Should I file the complain to ATO or to the Fair Work Ombudsman?
What kind of evidences do I need to prepare?
Thank you
There is a tool here to help employers here decide whether they have employees or contractors, You should be able to use it too give you some certainty. You could contact either one, they should be able to steer you in the right direction if they are not it.
I tried both tools from ATO and Fair Work using my best knowledge. The ATO one advice that I am an employee but the Fair Work one advice that my situation is unclear even though many of the questions in the tool reveal me is an employee.
Yes, I can understand how this would come about. Both organisations look at different sides of what it means to be paid by a company.
The company who pays you wants you to look like a contractor as it saves them money. The longer you work for a company, the more chance you have of looking like an employee who is owed years of benefits. It's very hard to prove either way and can end up costing you money rather than earning the benefits you were supposed to be paid.
I'm not an expert. Each case is different.
Op do you have an abn?
Id talk to your work first before contacting external organisation. First thing they will ask is if you have raised it with your employer.
I expect so but I will tell them "will a murderer be so stupid to admit that he/she kills someone?"
This makes no sense. Considering you have given us little to no information, talking to your employer about a work place issues is definitely the most logical solution. You would be left with egg on your face should you be wrong and got federal departments involved.
Just open your own business & steal his clients; teach him a clear lesson about using contractors! ;)
Did you fill out a nat 3092?
No
How are you getting paid? Is it cash, cheque, direct deposit, etc? Do you invoice them? Are they providing you with payslips? Are they withholding tax? What is the hourly rate?
Youre leaving out a lot of information in your op on purpose. Troll?
Contact Fair Work - they can advise you.
Sorry need more info: profession, length of employment, etc might help.
Contractors have less rights than a employee.
you get given the work , you do it.. Don't - no work.
with little info given. I assume this is why you might be treated as a employee
I'll join the collection of members asking for more information.
Are you paid directly or do you bill your "employer" in the name of your trading company?
Do you get paid annual leave and other types of leave?
I wrote down some details abt my work and is nearly ready to post it here but just to let my colleagueto see anymore info could be added.
Just post what you have if people want more specifics they can ask.
Also what do you want to achieve out of informing the relevant authority? As the answer would likely point to differing causes of action as the best option.
If the employer is illegally treating me as a contractor, I would claim back for all the benefits I should receive as well as OT payments
Fair enough, I would talk to fair work first. I would also make sure I have other work lined up as I can't see your current work continuing after you proceed. I also wouldn't count on receiving funds owed in a timely manner as I could easily imagine many employer's avoid paying for as long as possible. This is all based on a number of assumptions did to the lack of information.
Ok, here is the details about my job:
Position, work description:
I work as a delivery driver. Every shift I need to deliver a trip of orders to different customers following the trip plan before specific time (I call this the “daily regular trip”). After finishing the daily regular trip, most likely there are missing stocks and add-on orders pending in the warehouse and I am required to deliver them. I can finish my daily work only at the time there are neither deliveries pending in the warehouse nor pending pick-up orders from suppliers when returned to the warehouse.
The major equipments used in this position are trucks, trolleys, and GPSs. They are provided by the employer. The employer is responsible to fuel expenses, repairs and replacement on the equipments. However, the employer is not responsible to traffic infringements. The employer will reimburse expenses paid by the drivers.
Drivers were told by the employer uniforms will be provided and must be worn during each shift. However, a $100 uniform fee will be deducted from wages.
ABN, TFN, Wages (or payments):
The supervisor first given an agreement to for me to sign stating that I have an ABN and work for the company as a contractor and stated the payment (or wages) is calculated in hourly basis and also I am required to be responsible to my own tax and super.. There is no TFN declaration to filled up and signed.
Wages will be paid weekly with reimbursement on expenses by drivers if there is any. No invoices is required from us to provided to the employer. GST are also not mentioned.
Roster, Leave:
Roster is made by the supervisor 1-2 days before the week starts.
If I am not able to work for whatever reasons including “I don't want work”. I can give notice 1-2 days in advance and the supervisor will find a replacement.
No sick leave, annual leave, long service leave and personal leave etc. are provided.
Sounds like an independent contractor to me, however I am not an expert.
The GST is a worry however. If you are an independent contractor then I think you have to get paid the GST and then hold this in trust and pay it back each quarter to the tax office with your quarterly return (I can't remember the name of this quarterly return off the top of my head). Make sure you claim the $100 uniform fee. If you need to get the uniforms drycleaned you can also claim some sort of deduction for this.
I suggest you speak to your accountant as soon as possible. If you don't have one, get one now.
If you get some sort of payslip or other paperwork reconciling your hours per day and the amount paid, check it carefully against your own personal diary for each day. Check whether that payslip has your company ABN or your personal name.
In case you're wondering, the reasons I think you are a contractor include the fact that you have to look after your own tax and super and that you get no paid leave from the company who pays your income. I'm not sure of the exact status of some of your other work conditions so others out there might have different opinions.
The quarterly report is called a Business Activity Statement (BAS). The tax office will use this to figure out how much GST you have to pay and how much tax you will need to pay in advance. I think they call that Pay as you go tax.
Have you investigated your insurance status and occupational health and safety status. Do you need to take out your own Workers Compensation insurance?
If you have any way of getting free legal advice, now is the time to do it.
The supervisor first given an agreement to for me to sign stating that I have an ABN and work for the company as a contractor and stated the payment (or wages) is calculated in hourly basis and also I am required to be responsible to my own tax and super.. There is no TFN declaration to filled up and signed.
this sounds like a delivery contractor.
GST are also not mentioned.
The GST is a worry however. If you are an independent contractor then I think you have to get paid the GST
op has to be registered for gst to collect gst. don't waste your time with gst if your turnover is less than $75k per annum.
btw
do you have an abn?
Thanks for the clarification on the GST. I wasn't sure about the lower limit.
You need to give us a bit more info before we can you any advice.