Victorian Consolidated Legislation

Accident Compensation Act 1985 - SECT 9

Independent contractors

9. Independent contractors



(1) For the purposes of this section, a reference to a relevant contract in
relation to a financial year is a reference to a contract under which a person
during that financial year, in the course of a business carried on by that
person-

   (a)  supplies to another person services for or in relation to the
        performance of work;

   (b)  has supplied to that person the services of persons for or in relation
        to the performance of work; or

   (c)  gives out goods to natural persons for work to be performed by those
        persons in respect of those goods and for re-supply of the goods to
        the first-mentioned person or, where that person is a member of a
        group within the meaning of section 66 of the
        Accident Compensation (WorkCover Insurance) Act 1993, to another
        member of that group-

but does not include a reference to a contract of service or a contract under
which a person during a financial year-

   (d)  has supplied to that person services for or in relation to the
        performance of work that are ancillary to the supply of goods under
        the contract by the person by whom the services are supplied or to the
        use of goods which are the property of that second-mentioned person;

   (e)  has supplied to that person services for or in relation to the
        performance of work where-

   (i)  those services are of a kind not ordinarily required by that person
        and are rendered by a person who ordinarily renders services of that
        kind to the public generally;

   (ii) those services are of a kind ordinarily required by that person for
        less than 180 days in a financial year;

   (iii) those services are provided for a period that does not exceed 90 days
        or for periods that, in the aggregate, do not exceed 90 days in that
        financial year and are not services-

                (A)  provided by a person by whom similar services are
                     provided to the first-mentioned person; or

                (B)  for or in relation to the performance of work where any
                     of the persons who perform the work also perform similar
                     work for the first-mentioned person-
for periods that, in the aggregate, exceed 90 days in that financial year;

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   (v)  those services are supplied under a contract to which subparagraphs
        (i) to (iv) do not apply and the Authority is satisfied that those
        services are rendered by a person who ordinarily renders services of
        that kind to the public generally in that financial year; or

   (f)  has supplied to that person by a person (in this paragraph called the
        contractor) services for or in relation to the performance of work
        under a contract to which paragraphs (d) and (e) do not apply where
        the work to which the services related is performed-

   (i)  by two or more persons employed by, or who provide services for, the
        contractor in the course of a business carried on by the contractor;

   (ii) where the contractor is a partnership of two or more natural persons,
        by one or more of the members of the partnership and one or more
        persons employed by, or who provide services for, the contractor in
        the course of a business carried on by the contractor; or

   (iii) where the contractor is a natural person, by the contractor and one
        or more persons employed by, or who provide services for, the
        contractor in the course of a business carried on by the contractor-

unless the Authority determines that the contract or arrangement under which
the services are so supplied was entered into with an intention either
directly or indirectly of avoiding or evading the payment of a premium by any
person; or

   (g)  has supplied to that person services for or in relation to the door to
        door sale of goods or of services ancillary to the sale of those goods
        on behalf of that person unless the Authority determines that the
        contract or arrangement under which the services are so supplied was
        entered into with an intention, either directly or indirectly, of
        avoiding or evading the payment of a premium by any person.

(2) For the purposes of this Act-

   (a)  a person-

   (i)  who during a financial year under a relevant contract supplies
        services to another person;

   (ii) to whom during a financial year, under a relevant contract, the
        services of persons are supplied for or in relation to the performance
        of work; or

   (iii) who, during a financial year, under a relevant contract, gives out
        goods to other persons-

shall be deemed to be an employer in respect of that financial year;

   (b)  a person who during a financial year-

   (i)  performs work for or in relation to which services are supplied to
        another person under a relevant contract; or



   (ii) being a natural person, under a relevant contract, re-supplies goods
        to an employer-

shall be deemed to be a worker in respect of that financial year;

   (c)  amounts paid or payable by an employer during a financial year for or
        in relation to the performance of work relating to a relevant contract
        or the re-supply of goods by a worker under a relevant contract shall
        be deemed to be remuneration paid or payable during that financial
        year; and

   (d)  where an amount referred to in paragraph (c) is included in a larger
        amount paid or payable by an employer under a relevant contract during
        a financial year, that part of the larger amount which is not
        attributable to the performance of work relating to the relevant
        contract or the re-supply of goods by a worker under the relevant
        contract may be prescribed; and

   (e)  an amount paid or payable for or in relation to the performance of
        work under a relevant contract is deemed to include any payment made
        by a person who is deemed to be an employer under a relevant contract
        in relation to a person who is deemed to be a worker under the
        relevant contract that would be a superannuation benefit if made in
        relation to a person in the capacity of an employee.







(3) Where a contract is a relevant contract pursuant to both subsections
(1)(a) and (1)(b)-

   (a)  the person to whom, under the contract, the services of persons are
        supplied for or in relation to the performance of work shall be deemed
        to be an employer; and

   (b)  notwithstanding subsection (2)(a)(i) the person who under the contract
        supplies the services shall not be deemed to be an employer.



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(5) Where, in respect of a payment for or in relation to the performance of
work that is deemed to be remuneration under this section, a premium is paid
by a person deemed under this section to be an employer-

   (a)  no other person shall be liable to a premium in respect of that
        payment; and



   (b)  where another person is liable to make a payment for or in relation to
        that work, that person shall not be liable to a premium in respect of
        that payment unless it or the payment by the first-mentioned person is
        made with an intention either directly or indirectly of avoiding or
        evading the payment of premium whether by the first-mentioned person
        or another person.

(6) In this section-

   (a)  a reference to a contract includes a reference to an agreement,
        arrangement or undertaking, whether formal or informal and whether
        express or implied;

   (b)  a reference to supply includes a reference to supply by way of sale,
        exchange, lease, hire or hire-purchase, and in relation to services
        includes a reference to the providing, granting or conferring of
        services;

   (c)  a reference to the re-supply of goods acquired from a person includes
        a reference to-

   (i)  a supply to the person of goods in an altered form or condition; and

   (ii) a supply to the person of goods in which the first-mentioned goods
        have been incorporated;

   (d)  a reference to services includes a reference to results (whether goods
        or services) of work performed; and

   (e)  a reference to the door to door sale of goods or of services ancillary
        to the sale of those goods is a reference to the entering into of an
        agreement or the making of an offer for the sale of those goods or
        services to the end user, or the taking or soliciting of an order for
        the purchase of those goods or services by the end user at a place
        other than a place of business where goods or services of that kind
        are normally offered or displayed for retail sale.