It’s important to know what type of employee you are so you are aware of your rights and obligations.
Different laws apply to different types of employees.
This includes whether you are employed:
To find out what law applies to your situation, get legal advice.
State law or Commonwealth law
Employment law in Australia is regulated by the state and Commonwealth governments.
Most employees in Queensland are covered by the Commonwealth Fair Work laws. Employees who work for state or local governments are covered by Queensland employment laws.
Contact the Fair Work Ombudsman to find out about your rights and obligations under Commonwealth employment law.
Contact the Office of Industrial Relations - Queensland to find out about your rights and obligations under Queensland employment law.
Independent contractors and employees
An independent contractor is someone who works under a contract for a specific job or length of time (eg a plumber hired to fix a leak).
Unlike an employee, an independent contractor doesn't work regularly for an employer—instead, they only work when they’re needed.
Contractor or employee?
It can be difficult to determine whether someone is a genuine independent contractor or an employee. This often depends on their specific work requirements.
- decides how to do the job they have been contracted to do
- bears the risk for making a profit or loss on each job
- generally has their own insurance
- generally has their own tools and may work in a number of locations
- sets their own work hours
- doesn't get paid leave and other employment benefits
- is paid based on their completing the job they are hired to do
- invoices the person who hired them to do the job
- pays their own tax and superannuation
- generally operates their own business.
- performs the jobs set by their employer in the way their employer tells them to
- bears no financial risk (this is their employer’s responsibility)
- generally works on the employer's premises
- usually works standard or set hours
- receives annual leave, personal leave and other benefits
- is paid regularly
- has their tax and superannuation handled by their employer.
Even if someone is called a ‘contractor’, they may actually be an employee, depending on the situation.
If you’re not sure whether you’ re a contractor or an employee you should get legal advice.
Sham contract arrangements
A 'sham' contracting arrangement is when an employer deliberately tries to disguise an employee as a contractor to avoid paying entitlements such as leave and superannuation.
Sometimes employers threaten employees with losing their job if they don’t agree to become contractors. This is illegal.
It’s illegal for employers to:
- pressure employees to become contractors by threatening to terminate their employment
- mislead employees about their employment conditions
- terminate employees and then re-hire them as contractors to do the same job.
Employers can be fined for breaking these laws.
If you think your employer is breaking these laws, you may be able to make a claim for breach of general protections. You should get legal advice.
Do I need legal advice?
You may need legal advice if you:
- think there’s been a breach of an employment contract, award or agreement
- need to recover unpaid wages, benefits or entitlements
- think you’ve experienced bullying, harassment or discrimination in your workplace
- think you are employed under a sham contracting arrangement
- have any other genuine dispute with a current or former employer.
How to get legal advice
We may give legal advice to employees on employment matters.
We can’t give legal advice:
- about enterprise bargaining or modern awards
- to employers or genuine independent contractors.
If we can’t help you, we may be able to refer you to other services which may be able to help.
Caxton Legal Centre—Employment law advice service can give advice about unfair, unlawful and constructive dismissal, workplace bullying and discrimination matters. Contact them to find out if they can help.
LawRight Self Representation Service (Federal) gives legal advice and help to people involved in civil proceedings in the Federal Circuit and Family Court of Australia or Federal Court for matters involving employment. They may help with drafting documents and correspondence relating to your legal matter. They don’t provide representation.
LGBTI Legal Service gives free legal advice and information to LGBTI clients, including legal advice relating to employment.
Queensland Law Society can refer you to a private lawyer who can give advice to employees, employers and contractors on employment and industrial relations law, and may be able to represent you.
Who else can help?
The following organisations may be able to help. They don’t give legal advice.
Commonwealth Fair Work Ombudsman gives information about workplace laws, rights and obligations, and investigates complaints and suspected breaches of workplace laws, awards and agreements. They can help if you have been working under a sham contract preventing you from being paid entitlements.
Fair Work Commission is the national workplace relations tribunal and can give information about unfair dismissals, general protections, workplace bullying and harassment and how to lodge an application.
Apprenticeships Info gives free advice, referrals and support to all Queenslanders about apprenticeships, traineeships and training options.
Office of Industrial Relations - Queensland gives information about workplace relations including long service leave, child employment, private employment agents, trading hours, workers' accommodation, public holidays, and wages and conditions for public sector and local government employees.
Queensland Industrial Relations Commission is an independent tribunal established to conciliate and arbitrate industrial matters in Queensland. The QIRC provides information about awards and agreements.
Workplace Health and Safety Queensland is the state government department that deals with complaints about workplace harassment, safety and fatigue. They also give information on making a complaint internally through your workplace or externally through their complaints process.
Department of Employment, Small Business and Training gives information and referral services to independent contractors.
Australian Council of Trade Unions give help to union members about employment matters.
Queensland Human Rights Commission gives information and helps to resolve complaints about discrimination in public life, including in the workplace.
Australian Human Rights Commission gives information on human rights and helps to resolve complaints about discrimination or breaches of human rights under federal laws.
Queensland Working Women's Service is a free, confidential advisory service to help Queensland women with work related matters. They can also help with advocacy and referrals about industrial relations matters including employment rights, unfair dismissal, discrimination and harassment.
Financial counselling can help if you are experiencing financial difficulty because of illness or job loss. They may be able to help arrange for payments to be reduced or postponed.