In a recent ruling of the Fair Work Commission, a worker’s claim of an employment relationship was rejected as the level of control exercised over work deemed the relationship that of a contractor and principal.

The worker agreed to sell Westral Sunshades products for a commission in 2011. He worked from home and went from door to door for potential customers to provide quotes and sales. In March 2020, the worker’s liability to rectify a sales error was brought to his attention by a Westral director. The worker disliked this and said he was leaving the company. The worker claimed he was an employee due to his uniform and the way work was controlled by Westral.

As many will recognise, a key deeming characteristic of a contractor is often the control over work being independently regulated by the worker themselves as opposed to the company they are contracted for. However, as the worker was providing sales services in the form of his own business and as there was a lack of instruction from Westral, the worker was determined to be a contractor by the Commission.

As noted in the matter, the way to determine the employment or contractor relationship is to see the ‘whole picture’ as opposed to ticking off the relevant indicia. The evidence that the worker was a contractor painted the picture effectively. The worker enjoyed autonomy over his work, was not performance managed, was not supervised, chose the price of products sold, could advertise if he chose and was able to delegate and subcontract the work to others.

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Related Article

Employee or Independent Contractor? That is the Question

The question of who is an Employee and who is a Contractor is difficult to answer. Often it depends on several indicia but also, as the above article has discussed, the whole picture that is painted. See this related article for more details.