Know your rights: independent contractors V casual employee

As a performer it is important to know whether you are being engaged as an independent contractor or employee as this has serious implication for your rights at work.

Independent contractors
Independent contractors are self-employed and responsible for the key elements of their work and engagement. These can include (but are not limited to): providing and using their own work tools, deciding on and wearing their own dress/uniform, deciding how to perform the work, being able to delegate their work to someone else, determining how much their work will cost, and being responsible for their own workplace and injury insurance. Independent contractors should have good control over how they perform their work.

Many employment laws and regulations do not cover independent contractors. For example, they are not covered by the Live Performance Award and are often not protected under some state workplace injury insurance schemes. There are no legislated minimum rates of pay for independent contractors.

Casual employees
Casual employees are subject to more control by their employer than an independent contractor. For example, an employer might provide a uniform or costume, they are responsible for all workplace tools, and to direct the employee on how and when the work is performed and make decisions about how much the employee will be paid. Employers have obligations towards casual employees under workplace instruments, like the Live Performance Award, state workplace injury insurance schemes (eg - WorkCover) and the Fair Work Act.

Minimum entitlements owed to casual employees include minimum rates of pay, penalty rates for working as a casual, restrictions on maximum hours of work, requirements for breaks and being paid for travelling for work. Casual employees will usually have hours of work that can change from roster to roster, unlike part-time employees who should have a regular pattern of work.

The casual penalty loading is intended to compensate casuals for not accruing personal/sick leave or annual leave.

Employers are responsible for making superannuation contributions for their employees. In most circumstances, organisations are also obligated to pay superannuation for independent contractors where the contractor is providing their labour.

Performers should closely read their contracts to work out whether an organisation is trying to engage them as an employee or independent contractor. Performers should be aware of contract clauses that make them responsible for “indemnifying” an organisation if the organisation suffers loss as a result of the performer’s conduct. This indemnity clause will try to make a performer financially responsible for covering any financial loss experienced by the organisation as a result of the performer executing their duties. These clauses can be very risky, especially if a performer does not have insurance.

Our highly-trained industrial staff are available to provide members with advice and assistance about your rights at work on 1300 656 513 or members@meaa.org.