• Ken and Martha had a long phone conversation on the processes she might follow.
• This example is one reason why fair contract laws are needed for self-employed people as these sort of contracts would be unlikely to pass a fair contracts test.

Employee or contract motel manager?

(email from John to Ken Phillips)

I arrived in Australia from NZ in Oct 2009. My wife and I took up employment at the …….. Motel as managers. We were put on an Employment Contract as being self Employed. We were also told that we would get a certain wage and we would have to pay our own tax holidays etc and pay someone to relieve us for days off and pay them from our wages. I questioned the owner about us being self employed and being employees. We were told that it wouldn't happen as it was too expensive for us to be employees. We have since taken up employment at another motel in Jan 2011.

We went to NZ for my son's wedding recently and come back to find our job advertised on Seek.com.au. We were told that we have been fired and he asked us how much notice we were giving him. We were shocked and said 4 weeks if that's what he wanted. He had a meeting with us and he stated we quit....NOT CORRECT. We work 24 hours a day and NO time off...it's a 24 hour reception. $4.50 an hour? I feel that we are employees and not contractors ...... we clean the motel rooms and all the manual work here .... something that an employee does. The word Manager is just a sham I feel. I don't mind work but the word slave labour comes to mind. We feel that we are being used by this Company.

ICA Comment: This sounds very much like a sham contract.

George has an issue over intellectual property

(email 1 to Ken Phillips)

Dear Mr Phillips,

I am having a problem with my design company at the moment and need some advice. I worked for ...... as a Multimedia Design contractor and helped them to design an animation for their product called ......

Later when I finished the product and handed over the project, I published it to my online portfolio and acknowledge that I worked for ...... and they keep the copyright on my website clearly.

Now they are forcing me to remove the work because I am not allowed to do that, and I think it is not reasonable. They have contacted a lawyer to contact me and he is forcing me to remove the work.

I wish some one could help me about this matter.

Thank you for your time.

Regards
George

(email 2 from Ken to George)

George
Breach of copyright issues can be highly complex. In your instance it would depend on:

1. What agreement you had in relation to IP before you started the job and was this clearly stated.
2. Specifically what you put on your online portfolio.
3. Specifically what it is they are alleging.

Obtaining a commercial outcome is the best option. I'd be inclined to talk directly with them to see what you could negotiate what they would accept you put on your online portfolio, if anything. If you can't agree, then you need to decide if you want to fight this through lawyers and whether the $s you would spend is worth it. You would need good sensible commercial legal advice.

The lesson for the future would be to make sure that for future work you have clear written agreements on IP with your client. I find I have to argue this out frequently with my clients. Hope this helps.

Rgds
Ken

(email 3 from George to Ken)

Hi Ken,
I appreciate your help.

Regards to the matter, I forgot to say that before starting the project, there is no contract between us. I finished the work and sent him an invoice only. Also he hasn't paid me completely. When he knew that I published the work on my website, he said that he only paid me if I sign in a contract of removing the work which is not fair for me.

Lately a lawyer of him sent me a letter and forced me to remove the work without allowing me to discuss further with him. I removed the work but I think it is not fair for a designer.

At the moment overseas, and I am still not sure what I can do.

Thanks for your advice.

Regards
George

John's problem is to do with taxi licenses

(email 1 to Ken Phillips)

Dear Mr Ken Phillips,

I first heard about ICA while driving my cab and listening to Radio National yesterday,Monday,4th July, 2011;very interesting indeed.

I pay an annual fee to lease a Peak Service taxi licence from the Victorian government. This cab is only allowed to operate 16 hours a day, even though I pay taxi depots and the government the fees that are equivalent for operating 24 hours a day. These Peak Service taxi licences were released with the provision that operators could have the option of converting to a 24 hour licence after 6 years. Instead the Victorian government released a further 530 full time taxi licences, auction style.

Question. Do I have a case to take the Victorian government to VCAT for breach of contract? Further, do I have a case against a taxi depot for charging me the equivalent of full time fees when I can only operate 16 hours a day?

Sincerely,
John

(email 2 from Ken to John)

John
You are asking some very complex questions, but here are some thoughts:

1. Everything would depend on the terms of the contract you have.
2. Ordinarily in these situations where government is involved, governments write the laws so that they can't be sued.

In a moral sense you certainly seem to have a case. Whether you could win in court is impossible for me to even guess. You'd certainly need very good legal advice and some deep pockets to pay for the advice.

I'm not much help I'm afraid.

Rgds
Ken

(email 3 from John to Ken)

Ken,
Thank you for your comments. I am still waiting on a reply from the Victorian Civil and Administrative Appeals tribunal (VCAT) to see if they have any jurisdiction in this matter. If they do I will proceed. If VCAT doesn't have jurisdiction then I will be reluctant to go to a magistrates' court as the State and private taxi companies have more resources than me.

The exploitation of contractors is universal in the taxi industry. Both governments and taxi depots, privately owned companies, to which cabs are by law required to belong to, have a workforce that is predominantly Asian , on a government visa, and seeking permanent residence in future. Often their knowledge of our language and culture is poor. So they are an easy target for contracts that are biased and designed to exploit their labour and assets; while providing a constant source of revenue for the State.

The next time you meet a cabbie and he looks fatigued or shows little knowledge of your city, please don't shoot the messenger, Ken. Many people in Melbourne have been influenced by the tabloid press and have allowed their judgments to be affected by issues of race. Instead, people need to look behind the surface and see that government, the monopoly taxi licence provider, has a taxi economy that is functional for its revenue needs. It is assisted by private companies whose records and financial details are not subject to public examination.

All the best,
John

Sam's issue is with a courier driver's contract. Can I refuse work? We say 'yes', but ... read on

Hi Ken,

We spoke earlier in the year regarding negotiations for my courier contract. Your advice was to leave the company---as yet I haven't taken that advice.

We are at the end of the negotiating process but do not agree on one issue. That issue is my right as an independent contractor to decline work if I feel that the work offered is not financially viable. The work in question is work performed out of the metro area (work that I was previously paid a higher rate for). My principle contractor now wants me to perform this work at the same hourly rate as local work. Naturally my expenses would be much higher, making this work uneconomical. So my question to you is, do I, as an independent contractor have the right to decline work if I feel it uneconomical.

I know what you are thinking, but this work suits my personal circumstances and I would like to continue working with this company.

Thanks Ken,
Sam

(email 2 from Ken to Sam)

Sam,
There's absolutely no question that as an independent contractor you have the total right to reject work. If its not commercially viable for you or, for example it's unsafe, say NO, politely and professionally. A primary feature of being an independent contractor is that you operate on offer and acceptance of contract. They can offer you a contract and you can accept or reject it.

If they want to force you to do a contract, then they really want you as an employee.

Cheers
Ken

(email 3 from Sam to Ken)

Hi Ken
Thank you for your reply.

That is how I understand my situation, however my principal contractor's HR dept. think otherwise. If, after signing the agreement I politely decline unprofitable work, only to be severely reprimanded by my principal contractor, what would be my course of action ?

(Apart from leaving the company )

I do expect some confrontation over this matter.

Thanks again
Sam

(email 4 from Ken to Sam)

Sam
You need to make sure that the contract you sign is one you are happy with. That is you ensure that you have written into the contract that you can accept or reject work.

Ken

(email 5 from Sam to Ken)

Copy of email sent to his client:

Hi ....

This is a copy of an email Ken Phillips (Executive Director of Independent Contractors Australia) sent me in response to my query regarding the issue of declining unprofitable work.

As you can see, this is not a negotiable issue. This is a major factor in determining whether an employee/employer or contractor relationship exists.

Could you please forward this onto ........ I would like to have this issue settled and the agreement signed by this Friday if possible.

Reply from management below:

Sam is confused with Ken's response – he does not have the choice to sign an agreement and then refuse to do some of the work - he does have a choice on whether he wants to continue to work with ........ as an independent contractor.

I do see where management are coming from here after re reading the email from Ken. Ken may need to expand a little more to get his meaning across.

Sams client

(email 6 from Sam to Ken)

Hi Ken,
I have forwarded a copy of your earlier email regarding the issue of my right to decline unprofitable work.

As you can see from .......... response below, the message is not getting through. Could you please send me an email that plainly describes that even though I am paid an hourly rate, if I am offered work that in my opinion does not return satisfactory profit that I am entitled to decline that work.

I will then forward that email onto ........

I realise that you have been extremely busy over the past few days.

I am very grateful for your co-operation.

Thanks again,
Sam

Note: Sam and Ken have had subsequent conversations.