The diversity of the work we do means that we use a variety of different legal categories of employment. Each has its own characteristics and obligations with which we must comply. There are real risks in not understanding the different categories set out below and complying with the requirements when employing people in those categories. The law recognises two broad distinctions team members and contractors.
Team Members
In the case of direct employment arrangements (IEAs and CEAs but not Independent Contractor Agreements) there are a number of typical arrangements covering hours of work and duration of employment:
Permanent full-time
- If the employment relationship is ongoing until terminated by the team member or Council, the arrangement is described as permanent employment.
- Full-time usually means you work 40 hours a week, but can be around 35-40 hours a week.
Permanent part-time
- Part timers are permanent team members who usually work less than 40 hours per week. Usually such team members work a regular pattern of a set number of hours on a set number of days per week. However, increasingly such team members work a variable pattern of hours and days according to a weekly roster published by the employer. (e.g. Aquatic centre employees)
- Part-timers generally enjoy the same employment benefits and protections (for example, leave entitlements) as full time staff, though it is on a pro rata basis.
Casual
- Casuals are not permanent team members. A casual’s employment ceases at the end of each period they are engaged to work. They may be engaged for a few hours at a time, a few days in a week, or full-time hours for a week or two to cover a team member on leave. The casual is typically employed for a series of such engagements, therefore working in the business off and on over an extended period of time. Nevertheless, they do not have an ongoing relationship with us in the same way as a permanent team member.
- Where a so-called casual works a regular pattern or virtually full-time hours on an ongoing basis, they are likely to be regarded a permanent team member. In this case, the team member may be able to claim they were terminated unlawfully and/or be able to claim back payment for other entitlements denied them as a casual.
- Casuals are paid only for the time they work.
Temporary or fixed term employment
- Temporary or fixed-term agreements are for situations where a team member is employed for a limited period of time, or to complete a specified task or project.
- However, great care is required when entering into fixed term arrangements. There must be a genuine reason based on reasonable grounds for the fixed term and the team member must be advised of when or how their employment will end and the reasons for the employment ending in that way.
- Genuine reasons for fixed term/temporary agreements could include the following:
- To cover an team member on parental leave, study leave or special leave without pay.
- To undertake a specific project or work of a finite duration (for example, implementation of an IT system)
- To cover situations where there is no guarantee of funding for the work beyond a specific period
- To cover a temporary increase in normal workloads (summer tourist peak).
- Students who are recruited for temporary periods over holiday breaks
- Cadets who join the employer to undergo a cadetship than can take up to four years to complete their agreed course of study and on-the-job experience
- Attention must also be paid to the expiry date. If the team member is permitted to continue working past the expiry date, they may be deemed to have become a permanent team member.
- Care is needed if an existing fixed term/temporary contract is to be renewed or extended. A genuine reason will need to exist at the time of the renewal or extension.
- If we prematurely terminate a genuine fixed term agreement, we may be liable to pay the team member for the balance of the term of the agreement. This can be overcome by inserting a notice period in a fixed term agreement, but this also provides the team member with the ability to give notice to terminate the agreement before the stated expiry date.
Contractors
In some instances you may wish to engage a contractor (a ‘contract for services’) as an alternative to employing a person (a ‘contract of service’). Alternatively a potential team member may ask to be contracted rather than employed. In either case there are risks, implications for RLC and approvals is required (both your manager and Group Manager must approve engagement of contractors).
Engaging contractors - what you need to know
- Team members are covered by agreements of service whereas independent contractors enter into agreements for service to produce an agreed result.
- An independent contractor agreement is required where the parties want to set up a commercial arrangement. This is usually between a company (referred to as the principal) and a contractor (usually a company but could also be a partnership or a sole trader, which is a single person operating a business under their own name or with a registered business name). The payment basis for a contractor is usually a set price or formula for completion of a task. However in many cases, payment will be in regular installments as progress payments depending on the amount of work completed in the period.
- An independent contractor agreement is suited to situations where a contractor agrees to provide specified services for a period or undertakes to complete a project or specified parts of it. This is similar to situations where you engage a building contractor or electrical contractor to build a new home.
- However, if the contract in its operation is not a genuine contract arrangement, RLC is exposed to the risk that the contract was a sham and the contractor was in reality an team member. RLC may then be open to claims of personal grievance that the claimant was denied entitlements properly due to him/her as an team member (such as annual holidays).
If the contractor is a company, the risk of that occuring is significantly reduced. Other factors that will mitigate the risk include:
- A written contract specifying the intention of the parties to enter into a relationship of principal and contractor.
- The contractor being free to decide how the work will be performed and the hours to be worked.
- The contractor being free to accept other work and not being tied exclusively to working for the principal.
- The contractor being responsible for providing and maintaining the necessary tools and equipment.
- The contractor being paid on submission of a GST invoice at the completion of the work or on achievement of agreed milestones.
- The contractor being responsible for all employment obligations of its team members.
- The contractor being able to assign the contract to another party.
Legal tests used to distinguish between team members and contractors
- The Control Test – concerned with the nature and degree of detailed control over the person performing the work. This is the most durable however other tests are also important in coming to a decision.
- The Fundamental Test – whether the person performing the work is in reality part of the organisation or in business on his or her own account.
- The Intention Test – whether the parties intended the relationship to be an employer-team member relationship.
- The Integration Test – whether in all the circumstances an employer-team member relationship is indicated.