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

[Charlie Foxtrot India]

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"

[PyroTek]

New CPL subject: "Gaining appropriate employment" could be handy

[BKFI]

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]

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 . 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]

...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!

[notaplanegeek]

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.

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

[Aerodynamisist]

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]

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]

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]

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]

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]

@Tailwheel,

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]

Unfair Contract

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

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]

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]

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]

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" Re Porter (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]

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.

[notmyC150v2]

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.

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

[Rojer Wilco]

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" Re Porter (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 Vabu’s 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]

Trade Practices Act anyone?

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.....