11Regular contractors and casuals

11 Regular contractors and casuals (1) This section applies to the engagement of an individual by a person (the principal) if— (a) the individual has been engaged by the principal— (i) under a contract for services to work for the principal (whether or not on a casual basis); or (ii) on a casual basis under a contract of service to perform work for the principal other than work that is for (or incidental to) the principal’s trade or business (unless section 10 (2) applies, which deals with casual employment found through employment agencies); and (b) the individual personally does part or all of the work; and (c) if the principal is a corporation—the individual is not an Note for par (a) (ii) Section 10 (2) provides that if a casual worker employed other than for the employer’s trade or business is engaged through an employment agent, the casual worker is a worker employed by the agent. (2) For this Act, the individual is taken to be a worker employed by the (a) the engagement, under the contract or similar contracts, has been on a regular and systematic basis; or (b) the individual has (or, apart from any injury, would have had) a reasonable expectation of the engagement continuing on a regular and systematic basis (under the contract or similar contracts), even if the engagement has not been on a regular or systematic basis; or (c) the engagement of the individual is under a contract or similar contracts prescribed by regulation, even if the engagement has not been on a regular or systematic basis. (3) To work out whether an engagement has been on a regular and systematic basis, or whether there is (or would have been) a reasonable expectation of an engagement continuing on that basis, relevant matters include (but are not limited to) the following: (a) the terms of all relevant contracts; (b) the working relationship between the principal and the individual and all associated circumstances; (c) the period of the engagement, or the periods of the engagement if it has not been continuous; (d) the frequency of work under the contract or similar contracts; (e) the number of hours worked under the contract or similar contracts; (f) the type of work; (g) normal arrangements for someone engaged to perform that type of work. Examples of individuals who are workers 1 Payment by commission A sales representative engaged under a 3 month contract for payment by commission that forms part of a regular and systematic pattern of similar contracts to work for a real estate agency, canvasser or retailer, even if there is no express or implied guarantee of continuing work. 2 IT consultant—engagement under indefinite retainer An information technology consultant engaged on a retainer under which it is agreed that the consultant will be regularly and systematically available, on call by the principal, to offer advice or attend at short notice, even if the consultant was only recently engaged. 3 Owner-driver of a truck—regular engagement An owner-driver of a truck engaged by a local ACT carrier for an overnight trip (leaving regularly on the same day each week), even if any (or all) of the following apply: • there is occasionally no work for the driver; • the driver also works (or is free to work) for other carriers; • the driver was only recently engaged by the carrier. 4 Building contractor—exclusive engagement A bricklayer engaged under contracts for services by a particular builder for some years, who has worked for almost no-one else over that time, even if there is no express or implied guarantee of continuing work. 5 Regular casual worker A gardener engaged by a householder (under contracts of service or for services) on a regular and systematic basis over a number of years to work in the grounds of the house. The gardener’s engagement may be found to be ‘regular and systematic’ even if any (or all) of the following apply: • there is no express or implied guarantee of continuing work; • the gardener also works (or is free to work) for other households; • there have been occasional periods during which the gardener has not worked for the householder. Examples of individuals who are not workers 6 Payment by commission—no guarantee of future work A sales representative engaged under a 3 month contract for services with a real estate agency, canvasser or retailer, and who is paid by commission, if— • the contract does not form part of a regular and systematic pattern of similar contracts; and • there is no express or implied guarantee that any further similar contract will be offered, whether in a document or by inference from the working relationship between the principal and the individual. 7 IT consultant—occasional engagement An information technology consultant who is occasionally engaged by a small business for a week or more at a time under a contract for services, but not on a regular basis. 8 Owner-driver of a truck—irregular engagement An owner-driver of a truck engaged under contracts for services with a furniture retailer whenever available, who has made deliveries every day of the week at times (for example, just before Christmas), but at other times may go for months without working for the retailer. 9 Building contractor—irregular engagement A bricklayer engaged under contracts for services by a particular builder several times a year, but who is not regularly engaged by the builder. 10 Irregular casual worker A tree surgeon engaged by a householder on an irregular basis (under contracts of service or for services) to prune the trees around a house. The engagement may be found not to be ‘regular and systematic’ even if the tree surgeon has been occasionally engaged by the householder for many years. (However, if the tree surgeon is engaged through an employment agent, the tree surgeon is a worker employed by the agent (see s 10 (2).)