Closing Loopholes no. 2 – Unfair Contractual Terms

From the 26th of August 2024 independent contractors will now have the ability to apply to the Fair Work Commission (FWC) to resolve disputes between themselves and principals in matters relating to unfair contract terms in service contracts.

The change has been brought in to provide independent contractors (who earn below the contractor high income threshold) with a more inexpensive and informal pathway to resolving these disputes.

What does the FWC consider in these cases?

The FWC will apply tests to the relationship between the contractor and the principal to determine whether or not there are any instances of an unfair contractual relationship. The dispute, however, has to be about a matter that would be considered a workplace relations matter if the contractor was an employee of the principal:

Here are some of the matters that could be considered by the FWC in these cases:

• The relative bargaining power of the two parties;
• Whether the contract is significantly imbalanced in favour of one of the parties;
• Whether specific contract terms are necessary to protect the legitimate business interests of one of the parties;
• Whether a contract term is harsh, unjust, or unfair on one of the parties;
• Whether the remuneration for the parties to the service contract is less than other employees or contractors performing similar work;
• Any other matters the FWC considers relevant.

If the terms of the contract fail to meet the above criteria then the FWC may either set aside the contract term entirely or change the terms of the contract in order for it to be compliant.

What should I do next?

If your business is one that uses contractors it will be important to review the contracts that you have in place to ensure that it doesn’t contain terms that would fail to meet the above terms. Likewise when developing new contracts they should be made with these terms in mind.

Additionally, while we have no practical understanding of how these disputes will be settled by the FWC at this stage it also possible that it could draw additional scrutiny as to whether the relationship is actually that of an employer and employee as opposed to contractor and principal.

For more information you can visit the Fair Work Commission website regarding this matter by clicking this link

If you need any assistance with this or any other related matter please don’t hesitate to contact us on 1300 108 488 or by emailing us at enquiries@ridgelinehr.com.au