Sham contracting is a big issue in the cleaning industry.

Sham contracting is a big issue in the cleaning industry.

There are many ways in which big  businesses try to get an unfair advantage over small businesses and also their own employees. A common practice for many years has been to rechristen employees and class them as contractors.

An industry that would appear to be overrepresented  in forcing employees to become contractors is the cleaning industry. In some cases extremely large businesses try to hide behind supposed business arrangements with contracting companies.

Myer has been accused of aiding and abetting contracting companies maximising their profits to the detriment of employees classed as contractors.

In July 2015 The Age revealed cleaners at Myer department stores working for a cleaning services company called A&K Saana Services were being paid a flat hourly rate and not in accordance with the relevant award. An investigation undertaken by the Fair Work Ombudsman found that nine cleaning staff had been underpaid by $6300 in a month.

A Myer spokesman at the time had said, “the company took its duties as a responsible Australian employer seriously”, this comment has to be called into question as a result of a new case involving Myer.

The 7.30 Report reported on November 18 Myer was using another contract cleaning business, Spotless, where cleaners were classed as contractors, made to get their own ABN, were paid below the award rate and had to look after their own tax, superannuation, and insurance obligations.

Q. I work for a cleaning company using my own ABN. I have been advised by the company that I must get registered for GST and I will have to pay the 10 per cent GST out of my own earnings. As my annual income is only about $35,000 why should I have to get registered for GST?

A. You do not have to get registered for GST from an income tax point of view. It would appear that the cleaning company you are working for have turned the practice of making employees work as sham contractors into an art form.

On the Fair Work Ombudsman’s website, the differences between contractors and employees are clearly spelled out. The factors that determine whether someone is an employee are shown as:

  • have their work directed and controlled by their employer
  • work set or standard hours (casual employees hours can vary from week to week)
  • usually have an ongoing expectation of work
  • bear no financial risk – it’s covered by their employer’s insurance
  • are provided by their employer with tools or a tool allowance is provided
  • have income tax deducted by their employer
  • are paid wages or a salary regularly
  • are entitled to paid leave.

Alternatively independent contractors are shown as having the following factors:

  • have a high level of control over how the work is done, including the choice to hire others to assist
  • agree to the hours required to complete the job
  • usually engaged for a specific task or time
  • bear the risk of making a profit or a loss and usually bears responsibility and liability for poor work or injury and usually have their own insurance
  • use their own tools and equipment
  • pay their own tax and GST
  • have an ABN and submits invoices
  • don’t receive paid leave.

The tests applied by the ATO to decide whether someone is running a business, or is really an employee, are similar to those used by the Fair Work Ombudsman. What the cleaning company is asking you to do would appear to breach not only employment laws but also income tax and compulsory superannuation guarantee contribution regulations.

On the Fair Work Ombudsman’s website where the differences between employees and contractors are listed, see the link above, there is another link that allows employees wrongly classed as contractors to try and resolve the workplace issue of them being incorrectly classed as a contractor.