Contractor or employee?

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Contractor or employee?

A disc jockey working in a Melbourne hotel was found to be a contractor and not an employee so was not eligible to bring a claim under the termination of employment provisions of the federal Workplace Relations Act 1996.

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A disc jockey working in a Melbourne hotel was found to be a contractor and not an employee so was not eligible to bring a claim under the termination of employment provisions of the federal Workplace Relations Act 1996.

The disc jockey had been working at the Hotel for just over two years when his services were allegedly terminated for financial reasons. Before the issue of the termination of employment could be addressed, the Australian Industrial Relations Commission addressed the issue of whether an employee/employer relationship existed between the Hotel and the disc jockey. In doing so, the Commission considered a range of issues in coming to its final conclusion including:

  • the mode of remuneration;
  • the provision and maintenance of equipment;
  • the obligation to work;
  • the hours of work;
  • the provision for holidays;
  • the deduction of income tax;
  • the delegation of work; and
  • the direction and control the employer had over the disc jockey.

It was submitted by both parties to the application that the disc jockey worked a regular roster and submitted an invoice to the Hotel at the end of each shift. He was paid weekly, initially by cheque and later by electronic funds transfer directly into a bank account. There was no tax deducted from his pay nor did the employer make any superannuation contributions on his behalf. If the disc jockey wanted to take a day off or holidays (which were unpaid) he was required to give notice. He was also permitted to work at other venues. Further, the employer supplied most of the necessary equipment, including the mixer, CD player, turntable and sound system. The applicant provided his own headphones and CDs. (Fraser v The Sir Robert Peel Hotel; Print R1370, [1999] 102 IRCommA).

With regard to control over the music the disc jockey played the Commission found there was little control exercised and referred to an incident where management at the Hotel did not want the disc jockey to play a particular song. However the disc jockey 'won out' and continued to play the record in question.

The Commission found that the applicant:

...was free to work where and when he wanted to and the hours he wished to work. If particular theme nights were set by management [the applicant] was not obliged to work those theme nights if he felt that the music he played as a DJ was not suitable...

Put that together with all the other indicia about [the applicant] providing invoices setting out the hours and hourly rate of pay, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays and the deduction of income tax and the delegation of work by the putative employee... the Commission cannot help but come to the conclusion that there was not an employee/employer relationship.

The Commission dismissed the claim, determining that the applicant was not eligible to make an application for unfair dismissal under the Workplace Relations Act 1996.

 

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