View Full Version : Employed as a sole contractor earning well below award, my rights and what i can do??


unpressurised
23rd Jul 2010, 11:28
to all the wise pilots in the world of PPRuNe

i'm sure this issue may have been raised in the past but myself and a few others have been stuck with an employer that pays us well below the award with no penalities, I have recently read the Air Pilots Award 2010 and am aware what we are entitled to
his excuse is that we are employed as sole contractors and do not fall under the award
i feel extreamely ripped off, stuggle to pass week to week and thought the days of the poor pilot making less than the governments minimum wage were over

just so you know its $35/hr
working as little as less than 1hr per day on average 10hrs per week constantly on call for scenics and occasionally forced to fudge figures to fake a day off

the work is scenics, airwork and occasional charter.

BTW love the work just want to get paid accordingly

Unpressurised (under a bit of pressure)



beat ups are fun
23rd Jul 2010, 13:47
Well it sounds like you on a pretty sh*tty wicket. If I were you I'd be sending out your CV to as may CP's as you can. Keep your head down for the time being and when you get another job give your A-hole boss the bird as you walk out the door. Let's face it, you probably don't want someone like that as a reference in the future.

By the sounds your a 400 -500 hour pilot in your first job (correct me if I'm wrong) I'd be looking at the NT as there are a few entry level positions still available with companies who will pay you better than the chickenfeed your on now.

Good luck!

YPJT
23rd Jul 2010, 13:58
You are employed as a contractor so that your employer can get out of sick and holiday pay, workers comensation, superannuation etc etc. It's a scam that has gone on for years and continues to do so because pilots keep falling for it.
Working as a contractor is not an excuse to accept less. Your contract hourly rate should take into account the above entitlements.

If you have signed some sort of contractual arrangment you also might want to have a close look at your liability should you bend or break an aircraft owned by your client. Contractors usually do not enjoy the same protection as employees when it comes to damaging equpment they don't own.

Ex FSO GRIFFO
23rd Jul 2010, 14:08
I feel for you - been in same situation and simply gave THAT one away.
Could not afford to stay there - even if I did love the work.
Gotta eat, and save enough to think about a family.....at the time.

I guess you are aware that if 80% of your income is from the one employer - you are no longer a 'contractor' - you are deemed by the ATO to be an employee - and as such, are entitled to employee conditions and have your tax deducted by your employer.....plus 'super' etc

I think the above is fairly correct - others may be able to 'fine tune'....

Good Luck:ok::ok:

Lasiorhinus
23rd Jul 2010, 14:22
Keep detailed records, file a claim for back pay.

Dangly Bits
23rd Jul 2010, 14:27
Hint that it is very easy to knock off a nose wheel and injure pax as you are tired from working long hours. 3 lost nose wheels and bulk strips would teach them a valuable lesson!

XX-ANY
23rd Jul 2010, 14:29
"and occasionally forced to fudge figures to fake a day off"

maybe its time for a friendly audit of the Kimberley operators?

kalavo
23rd Jul 2010, 14:34
Why the hell do people keep signing up for this and WTF keeps you there? You (or mummy and daddy?!) have spent tens of thousands of dollars getting you a professional qualification, and you agree to contract at less than the minimum wage because you don't have any experience other than basic training. Whats the go man?

Charlie Foxtrot India
23rd Jul 2010, 14:44
You must have known about the wage before you started...so why did you agree to it?

XX-ANY
23rd Jul 2010, 14:47
From you previous posts you have been in the Kimberley's in 08'? very intrested to know when Mr CASA was coming thru?

MUST BE A WIND UP :D

solowflyer
23rd Jul 2010, 14:54
As beat ups are fun has said keep quiet and get another job. No doubt u have a few hrs under your belt so should have no problem getting another job if you try hard enough.

Last charter co I worked for Paid $50 an hr supplied a house and a fair bit of food to. Pocketed aroud 6 -700 a week over the wet. use your contacts and face book to help land that next job.

Kelly Slater
23rd Jul 2010, 15:08
Three low time jobs are on the AFAP website at the moment, apply to them. In the mean time, if you work under these conditions, it is by your own free will. You have not been offered the award or promised anything more than you are getting so claiming backpay at a future date makes you as bad or worse as the employer, my opinion only and probably not shared by all.

Sir HC
23rd Jul 2010, 19:35
Grow a pair and man up. If you don't like it, move on. Operators want experienced guys who won't bend machines, you want hours and money, surely you can come to a compromise. Ask your boss for a raise, outlining your strengths, if he thinks you are worth it, he'll pay you more, if not he'll let you go. I hate the thought that you can just pay your $70k, put six months in and go and earn big dollars. Doctors, lawyers, crane drivers, builders and LAME's have to put the hard yards in for (up to four) years before they see their returns. What makes some pilots think they are entitled to an equivalent wage within 2 years of being in the industry. Spoilt pr!cks comes to mind.

To all of you up there flying hard, learning lots (including realising how much you don't know) and enjoying it. Good work, you will look back on it as some of the most enjoyable times in your life and move forward before you know it.

To the whingers, it's a free economy. Your boss doesn't get contracts, own machines, pay insurance and employ staff to build a business by operating on an unfesable budget. If you want to make the big bucks, you have to work hard son.

Out.

tail wheel
23rd Jul 2010, 20:37
unpressurised.

Without even knowing your circumstances, you are not a "contractor" and any "contract" you signed is invalid.

"his excuse is that we are employed as sole contractors and do not fall under the award"

Rubbish!

You are either a casual employee or part time employee, subject to the Award terms and conditions.

"and occasionally forced to fudge figures to fake a day off"

And you're an idiot, personally liable for your breaches of CAO48 and do not deserve to hold a CPL!


Use the Search function - the subject has been covered numerous times before;
Contact Fair Work Australia (http://www.fwa.gov.au/);
Get a real job.

I suspect this is a wind up. No one could be that stupid......... :=

RogerRamjet01
23rd Jul 2010, 21:31
You need to do 3 things.

1) Keep PROOF of hours worked. If there is no documentary proof in the form of payslips (which employers are legally obliged to give you, by the way) then make your ownproof in the form of a work diary including start / finish times, dates, flights etc.

2) Leave.

3) Go to fair work australia. Even if you are a contractor, there are provisions in the award for casual employee rates. In any case if your employment is more in the nature of an actual employee rather than a contractor, FWA may determine that you should be entitled to (some) entitlements of an employee. Google search "Sham contracting". I dont know the details of your employment so this may or may not apply to you.

BTW if you are employed as casual you are supposed to be rostered for a minimum 2 hours flying per shift according to the award, IIRC (dont have it in front of me atm, so you'll need to check).

As for some of the previous comments about 'doing the hard yards' in various other walks of life.. this is absolutely irrelevant. Employers either pay the award or they packup and go to some other dodgy backwater. This is legal minimum entitlements we are talking about here, not some kind of generous wage. We ALL have a right to be rewarded at a minimium level for our work, such that we can at least afford to live.

psycho joe
23rd Jul 2010, 22:22
Unpressurised,

If your employer is dictating wages & schedules etc then by the ATO's definition, you are not a contractor. You are an employee & are entitled to (amongst other things) Superannuation.

Call the ATO. Their pet hate is employers who pull the contract/no super thing & this bloke will be up for a lot of back pay & fines. :D

I only know through bitter experience. Fair Work Australia explained to me that as a GA pilot I must be getting paid several hundred thousand per year & so not a priority for them.

AFAP explained to me that, although I'd been a member for several years."We believe that it is not in our (AFAP's) best interest to pursue the matter". ugh: :yuk:

Horatio Leafblower
23rd Jul 2010, 22:27
AFAP explained to me that, although I'd been a member for several years."We believe that it is not in our (AFAP's) best interest to pursue the matter". ugh:

Ah so we DO have some common ground :}

They said the same thing to me.. and I am still getting Emails from Lenny asking why I haven't paid my dues :suspect: :ugh:

tail wheel
23rd Jul 2010, 22:35
"Fair Work Australia explained to me that as a GA pilot I must be getting paid several hundred thousand per year & so not a priority for them."

FWA do not have discretionary power - they are obliged to investigate formal complaints. If appropriate, they can investigate an employer without revealing the complainant's identity.

Western Australia has certain exemptions to Fair Work legislation, however you should contact:

Western Australia:
Floor 12, 111 St Georges Tce, Perth, 6000
GPO Box X2206, Perth, 6001

Telephone: (08) 9464 5172
Facsimile: (08) 9464 5171
Out of hours emergency: 0448 275 936
Email: perth@<hidden>

By not acting you are not only disadvantaging yourself, but also future low hour pilots who obtain similar unlawful employment.

Employees

Perform work, under the direction and control of their employer, on an ongoing basis.

Generally work standard or set hours.

Bear no financial risk (this is the responsibility of their employer).

Are entitled to have superannuation contributions paid into a nominated superannuation fund by their employer.

Have income tax deducted by their employer.

Are paid regularly (eg. weekly / fortnightly / monthly).

Are generally entitled to get paid leave (eg. annual leave, personal / carer's leave, long-service leave) if they are a permanent employee.


Independent contractors

Decide how to carry out the work and what expertise is needed to do so.

Provide their own tools of trade.

Bear the risk for making a profit or loss on each job.

Pay their own superannuation and tax, including GST.

Generally have their own insurance.

Are contracted to work for a set period of time (for example, 2 months), or to do a set task.

Decide what hours to work to complete the job.

Generally submit an invoice for work completed or are paid at the end of the contract or project.

Do not get paid leave.


Fair Work Inspectors may take an employer to court if they find the employer is involved in sham contracting.

The courts may order the employer to pay a penalty of up to $33,000 per contravention.

This means, if the employer is involved in more than 1 sham contracting arrangement, they may have to pay a penalty for each arrangement.

Whilst it is yet to be tested by the Courts, I am of the view that any pilot operating under the auspices of an AOC and direct supervision of a Chief Pilot can not be a contractor. The only "contract" flying situation I can think of would be a contract to ferry an aircraft from one point to another. (I.E. International or domestic ferry flights, non commercial with no revenue generating payload.)

You must have known about the wage before you started...so why did you agree to it?

And why did you agree to an unlawful employment agreement, then unlawfully "fudge" your Log Book and Flight & Duty Times? :=

unpressurised
24th Jul 2010, 02:06
thanks heaps for all your help guys i realise i was stupid enough to enter this job
and yes i should have sorted this b4
i will look into it and a nice back pay would come in handy
not too keen of leaving but things dont change i will have no choice ill keep you posted next week and hopefully thanks to all your help there will be one less operator treating us like crap.
cheers

Arm out the window
24th Jul 2010, 04:18
"Contractors generally have their own insurance."

That's one part of it you should be very concerned about, not just the low pay. If you kill or injure someone, or yourself, or break an aircraft, who's paying?
If you're a 'contractor' and don't have appropriate insurance, you could be in trouble. Get some professional advice.

Charlie Foxtrot India
24th Jul 2010, 04:48
It seems to me that any flying school that doesn't make its CPL trainees aware of this sort of thing, and be sure they are aware of their rights and liabilities once in the work place, is seriously lacking in ethics. Sad that unpressurised has got as far as a job in GA and has to turn to pprune to find out that the pay is rubbish and that being classed as a "contractor" is unlawful.

I suppose all his/her instructors were also "contractors" :ugh::ugh:

PyroTek
24th Jul 2010, 08:22
New CPL subject: "Gaining appropriate employment" could be handy :ok:

BKFI
24th Jul 2010, 09:10
Don't be too hard on him... I'm sure plenty (if not most) instructors have worked under such conditions.

A certain (now closed) Bk flying school with AA very generic name operated like this for about 10 years, paying $20 per hour and actually rostering staff for a 45 hour week with set rdos, yet nobody put a stop to that (until the short lived instructor shortage hit in 08).

It is a shame that such practices are returning again though.

Ipecac
24th Jul 2010, 11:14
It's always a hard situation, especially in the current climate where jobs are scarce and pilots are plentiful (though looking at AFAP recently that's starting to change). You'll put up with almost anything to get that first job and get those hours. It's also very easy for others who have jobs to say don't do it. I've been in a similar situation with an employer in NZ who refused to pay minimum wage. After 2 months of fruitless negotiation he "withdrew his offer of employment" (despite the fact that I'd been working for him during that time) ie he fired me. By that stage I'd found another job and was happy to leave. I considered legal action but decided against it because aviation is a small industry and you never know when and where you'll meet that person again. I went to the union but they weren't interested and the tax department requires you to make a formal complaint before they'll do anything.

The point I want to make though is that you have rights. Being a new pilot doesn't mean employers can treat you like :mad:. just because "that's how the industry is". Your first port of call should be your employer. Try to negotiate and if that doesn't work then find another job and get out of there. Legal action is your right but you want to seriously consider it and weigh up the pros and cons for yourself.

To all aspiring pilots know your rights, take your contracts to a lawyer if you're unsure and remember that this industry moves in cycles and the dry times won't last forever.

I'm out

tail wheel
24th Jul 2010, 11:29
...take your contracts to a lawyer if you're unsure...

That may apply in NZ, but in Australia no "Contract" can over ride Australia's industrial legislation, unless it is a registered EBA granting as a minimum, Award conditions.

The frustratingly annoying aspect of this unlawful practice is that you are giving your employer, who is nothing but a despicable shonk, a financial advantage over a legitimate competitor who is paying his Award obligations and not breaching or requiring his "contractors" to breach civil aviation regulations.

Sorry, no sympathy here for "contract pilots" or the grubs that "employ" them! :mad:

mr flappy
25th Jul 2010, 01:43
We have all been there before, it's what you have to do to get some hours up but make sure you keep an accurate diary of detailed start and finish times etc etc.
When you move on to a real job, sue this dirt bag for everything he owes you. many of us have done just that, makes for a nice little seperation package!

notaplanegeek
25th Jul 2010, 05:40
Ask your boss, has out contractor agreement been lodged with state government? If they say no, ask them why not?

I understand your concern, and have been in the same situation myself. And I understand you not wanting to kick up a fuss and risk a bad reference.

Everyone has posted pretty good advice on here. But you can do something about it especially if you are an contractor working as an employee. Futhermore they will be fined by the ATO for not providing you with super etc if the decision is in your favour.

In regard to putting a claim in, keep your cool, man it out and start looking for a new job. Documentation is important, try keep emails and anything else relevant. I.e 'We have a flight at 10am, you are expected to report for work at this time' or whatever. To get back pay, holiday pay, super you don't need to file it on the spot. You could wait a few years and file it then. This saves you leaving with a possible bad reference.

Also if AFAP are telling you they can't help, that is garbage. Try LHMU or another union, they will get on their case. There are recent examples of people getting backpay from employers not paying the correct award.

Also while you are a contractor that makes you a sole trader. You can capitalise on this big time, talk to your accountant. :p

At the end of the day not paying correct wages and offering you a sham arrangement is nothing more than petty theft.

Aerodynamisist
25th Jul 2010, 06:00
To answer your question "what can I do ?" you can bloody well quit and go work for an operator that pays the award. Having been f^^&%d over twice in good jobs where another pilot came in and did the job for less, I have no sympathy sorry.

Rojer Wilco
25th Jul 2010, 06:16
Uh oh, did someone call the lawyers? I'll try to keep this brief and concise...

1. Everything hinges around what's written in the contract. Unless it's an employment contract, you have no legal recourse to back pay etc, nor does it have to be registered anywhere.

2. It's very likely that you may be owed superannuation. In simple terms, companies have an obligation to pay super to contractors who are contracted wholly and principally for labour.

3. Don't confuse contractor/employee legal tests for tax purposes with those for contract or employment law purposes. They may not be cross considered, and courts (rightly or wrongly) have distinctly different tests for each. Just because you're considered an employee by the ATO, does not mean that you're considered an employee for employment or contract law purposes.

On the balance of probability, I'd say it's likely that you dug a hole for yourself when you signed a contract for the provision of service, rather than one for employment. Why did you think the terms were agreeable then but not now?

Some things for you to consider...

a) Do you hold Workers Comp Insurance?
b) Do you hold public liability or professional indemnity insurance?
c) Do you charge by the hour or by the flight?
d) Do you use your own charts, uniforms, nav equipment etc?
e) Are you free to nominate someone else to fill the contract duties (ie could you send another pilot in your place without question)?
f) Do you invoice the company, or do you fill a timesheet?

These are the types of things a court will consider when deciding if you're an employee.

If you want some help, PM me your contract. I'd be happy to look it over.

Seriously though, put this one down to experience and find a better job with a reputable employer. Your's sounds like gutter trash to me.

BTW - The following is for free;


"Contractors generally have their own insurance."

That's one part of it you should be very concerned about, not just the low pay. If you kill or injure someone, or yourself, or break an aircraft, who's paying?
If you're a 'contractor' and don't have appropriate insurance, you could be in trouble. Get some professional advice.


The charter company has a bunch of common law responsibilities that they can't contract out of. That is, they have a responsibility to ensure the safe passage of their fares or hirers.

If you hurt someone while you're flying on their behalf, you're nicely insulated from any liability to their pax.

Watch out for this however... if the charter company is sued they could then in turn sue you for your negligence, which caused the accident (and their subsequent financial loss). My tip to you though is that if you're uninsured, the court will probably decide you're not liable because you're an employee, and they'll scratch around collecting all sorts of evidence to prop up their judgement. Courts generally don't like to find against parties that can't afford to pay in negligence actions.

The charter company's deep pocketed insurer is a much more attractive target to the charter company's lawyers than little 'ol broke pilot.

If such a legal action mounts, you should buy some popcorn, sit on the sideline and be ready to be entertained by everyone's lawyers (including the charter company) suddenly and madly scrambling to prove that you are, and always were, an employee!

YPJT
25th Jul 2010, 06:50
and all those other people saying horrible things about lawyers on another thread.

Thanks Roger Wilco, clearly more to this than the average pilot and bar room legal expert understands.

Although a good number of pilots regularly read and contribute to PPRUNE, I would suggest that what is reported here is merely the tip of quite a large iceberg.

engine out
25th Jul 2010, 08:16
In my years in GA I never remember signing a contract or being offered one. I was always told up front what I would get and accepted that or didn't. The onus was on me to accept the terms and conditions. To me that is the way GA was, I'm sure it has not changed much

Jethro Gibbs
25th Jul 2010, 08:33
What should you do.
Let me see the money is crap the hours are crap the prospects seem crap I would say get out now run as fast as you can.

Ipecac
26th Jul 2010, 10:09
@<hidden>,

Actually that's the law anywhere (including NZ) You can't contract your way out of or around the law. What I was saying by take it to a lawyer is if you're unsure whether the contract is fair or legal then have it looked at. Not everyone knows their rights or knows what they're entitled too.

PaulDamian
26th Jul 2010, 10:13
As noted above, the determination of whether you are an independent contractor or an employee will be determined on the basis abnd balance of a whole range of factors. Based on the info provided, I would say that you are an employee and would strongly advise you see a lawyer asap.

The leading cases are VABU, same principal/emloyer. One to do with public liability and the other to do with sueprannuation.

Its not all easy, as (i) employee entitlements/status (ii) Workcover (iii) Superannuation all have different tests. the basic one is the common law test.

Employees enjoy a common law implied 'indemnity' from their employer for any acts that result in loss, as long as it is done in the course of employment and not otherwise wilful or criminal. I.e., You crash your employer's car in the course of employment while going to pick up some widgets and knock over a power pole, costing $20K... On the other side, an employer is vicariously liable to 3rd parties for acts (or omissions) that result in loss and damage. Being an employee is reasonably safe.

In the event that you are not determined to be an employee, you would likely have grounds for a claim under the Independent Contractors Act for an unfair contract. Where you are simply providing you labour/personal service on an hourly basis, the award (and in addition other business costs, like insurance etc..) is often used as a base line to determine whether you are being subjected to an unfair contract and underpaid or ripped off. Under the old legislation, It was Section 127.

INDEPENDENT CONTRACTORS ACT 2006 (http://www.austlii.edu.au/au/legis/cth/consol_act/ica2006255/)

Look at Part 3 - Unfair Contracts and Section 12 - the Court may review a contract to determine whether (i) HARSH or (ii) UNFAIR.
Time limit is 12 months from when the contract ends (Regs)

The Fair Work site of the Fed Government strangely does not have much text on unfair contracts - but it is there in the Act.

On the positive side, the law will give you siome protection if you have any balls and motivation.

On the negative side, you might have trouble getting a job from another employer/operator if you have just demonstrated you preparedness to sue an employer, regardless of whether you were right or wrong. Some might be a bit shy to give you a job for fear of being sued and publicly hung out to dry like your previous employer.

The other negative is that legal action costs money... However, I love the excitement of litigation when someone else is paying.

The reality is that this issue in the aviation industry will probably not get resolved until someone suffers a significant loss and and a serious claim arises, looking for someone to pay. I've got my money on most of these pilot subbie arrangements being an employee relationship.

Importantly, get some independent legal advice from an experienced labour lawyer. Avoid the dodgy no-win/no-fee lawyers - pay for some initial sound advice and make a decision.

PM me if you want further info.

Paul

PaulDamian
26th Jul 2010, 10:19
BTW - Yes, (despite my background), if I ever finish my CPL I'll accept ANY job in aviation that results in me building my hours and not having to pay for it. It beats working in an office all day.

There is no criticism on you for accepting such an arrangment - your just doing the best you can and accepting what is on offer.

tail wheel
26th Jul 2010, 11:06
Paul and Rojer Wilco:

Whilst I defer to your obvious professional knowledge of industrial law, in the vast majority of cases involving exploitation low time "contractor" pilots the following prevails:


Conducts his trade under the direct supervision of the Operator;
Must operate in accordance with the Operator's Operations Manual;
Conducts his commercial flying under authority of the Operator's AOC;
Is unable to set his own start and finish times;
Repeatedly performs his flying duties to a roster provided by the operator;
Is not permitted or is unable to perform similar work for another Operator;
Is paid an hourly flying rate and has no capacity to negotiate a fixed rate for each engagement;
Has no right to pay another person to undertake the work;
The pilot provides a time sheet or other similar record, not a tax invoice quoting ABN and including a GST component;
The pilot is required to wear a company uniform (whether supplied or not) or the operator sets the dress standard;
Is required to be a representative of the operator;


I'd suggest the arrangement is clearly that of a "part time employee" or at worst, a "casual employee" (which I doubt due to the rostered, repetitious nature of the engagements) and thus relevent employee entitlements of an Award prevail?

PaulDamian
26th Jul 2010, 11:15
Sorry Rojer Wilco, I respectfully disagree that everything hinges around what is written in the contract. Have a look at Re: Porter:

"The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck" http://www.austlii.edu.au/images/displeft.png (http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AIRC/2003/504.html?stem=0&synonyms=0&query=Re:%20Porter#disp1) Re Porter http://www.austlii.edu.au/images/dispright.png (http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AIRC/2003/504.html?stem=0&synonyms=0&query=Re:%20Porter#disp3) (1989) 34 IR 179 at p. 184 per Gray J

Its an oldie, but a goodie. Still good law and quoted quite a lot.

In addition to the express written terms, a contract may also subject to:
- pre-contractual representations and promises
- express oral terms and promises;
- implied terms;
- terms established through custom and practice;
- statute (i.e. the independent contractors act); and
- the common law.

tail wheel
26th Jul 2010, 12:55
100.above.

I know my summary is correct. I've watched unscrupulous, unprincipled operators take advantage of vulnerable low time pilots for over 30 years!

"....only at a fixed hourly rate decided by operator (i.e. $45/hr) from wheels off to wheels on or they would refuse the invoice."

You are entitled to be paid for duty time, not flight time.

There are statutory time limits which apply to claims lodged with the Australian Industrial Relations Commission and I can't remember - maybe either 6 or 12 months? Paul or Rojer may know.

Do you have a copy of any roster given by the operator which provided you with continuing employment beyond only one engagement - i.e. do you have evidence that you were not engaged for specific flights only?

Do you have diary or flight records indicating the hours you were required to work - i.e. your detailed Log Book with times and aircraft registrations may surfice?

In the first instance I suggest you contact Fair Work Australia (FWA) for cost free advice. If their advice looks promising you may then seek advice from an Industrial Advocate. The FWA contact details are HERE (http://www.fwa.gov.au/index.cfm?pagename=headercontact).

notmyC150v2
26th Jul 2010, 22:56
An experienced and damn good looking industrial advocate can be found working for this firm in Brisbane.

Jones Ross : Corporate Industrial Relations Consultants & Advocates, Australia. (http://www.jonesross.com.au)

P.S. that is not me on the front page...

Rojer Wilco
27th Jul 2010, 02:31
Sorry Rojer Wilco, I respectfully disagree that everything hinges around what is written in the contract. Have a look at Re: Porter:

"The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck" http://www.austlii.edu.au/images/displeft.png (http://redirectingat.com/?id=42X487496&xs=1&url=http%3A%2F%2Fwww.austlii.edu.au%2Fcgi-bin%2Fsinodisp%2Fau%2Fcases%2Fcth%2FAIRC%2F2003%2F504.html%3Fstem%3D0%26synonyms%3D0%26query%3DRe%3A%2520Porter%23disp1&sref=http%3A%2F%2Fwww.pprune.org%2Fdg-p-general-aviation-questions%2F421939-employed-sole-contractor-earning-well-below-award-my-rights-what-i-can-do-2.html) Re Porter http://www.austlii.edu.au/images/dispright.png (http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AIRC/2003/504.html?stem=0&synonyms=0&query=Re:%20Porter#disp3) (1989) 34 IR 179 at p. 184 per Gray J

Its an oldie, but a goodie. Still good law and quoted quite a lot.


You may be jumping the gun to suggest that the poultry in question has the features of a rooster or the name of a duck. I was merely suggesting that we need a look at it's feathers to check to see if it was a bird at all.

A few points to make, not because I disagree with you, but because they might be helpful.

I see you referred to Vabu. Something that is often overlooked in the case is that the High Court decision in Hollis vs Vabu followed an earlier Court of Appeal taxation decision involving the same company being Vabu vs FC of T. In that decision (in respect of which leave to appeal to the High Court was refused), the NSW Court of Appeal had decided that couriers employed by Vabu were in fact independent contractors for the purpose of determining Vabuís liability to pay superannuation guarantee charge contributions.

In Hollis vs Vabu, the High Court noted the distinction between its decision and the earlier Court of Appeal decision in Vabu vs FC of T, and was at great pains to ensure that it was understood that the earlier descision still stood as good law.

My point is that courts will decide very differently on employee/contractor relationships when asked to do so in the different contexts of tort and the various statutory provisions relating to tax and employment. See also a recently unreported case Collin Ross Ralston v Peter Bell & Warren Smith t/as Xentex Patch & Grout & Anors [Supreme Court of NSW, Common Law Division] 2010.

Also, I'm unaware of the Independant Contractors Act being relied on in any instance to determine that a negotiated price for a services contract is unfair. Again, we'd need to see the duck (and in this instance the egg). I can't be sure, but I'd imagine that the Federal Court might be quite reluctant to interfere retrospectively with commercial price negotiation in such a way.

Another difficulty with relying on such an action would be the necessity to accept that the bloke is actually an independant contractor, and to represent him as such to the court. It bars us from hitting the charter company for tax, super and leave owed in lieu.

Instead, I'd suggest looking at s357 of the Fair Work Act, and working our way back from there. Lock him in as an employee, Eddie.

Look. There's no bones about it. The fella is an employee disguised as a contractor, and he's being ripped off.

I wouldn't suggest legal action unless he was tens of thousands of dollars out of pocket. I'd suggest he accepts some responsibility for his own actions (that got him here), puts this one down to experience and moves on.

If he blows the whistle on the charter company while he's walking off then so be it.

UnderneathTheRadar
27th Jul 2010, 06:52
I've got one out of left field which may seem odd on the face of it but has been increasingly accepted by the courts as very wide ranging tool for all sorts of actions.

Section 52 of the Trades Practices Act states that A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

This is not limited to wrongs against customers but is open to anyone who has suffered a loss as a result of the conduct of the corporation. Any representation by the company in this case which was misleading - even sofar as them representing that it was legal for this scheme of employment - could be used to go them under this section.

Memory fails me but a search will show some very interesting cases brought under this section and there are advantages, details of which also fail me(!), which has something to do with a lesser standard of proof or something and the fact that it can't be excluded by the actual contract. Maybe the lawyer types will have some ideas....

Of course, without the large money needed to bring an action under this act, I'm probably talking hypothetically but it's still an idea.

One other course of action would be to check on the insurance policy of the said 'employer' on who can fly their aircraft - if it says employees only then a quick phone call to the insurer might get their attention.....