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Indicia of Employment

The table below is not a comprehensive list of indicia which would determine whether a worker is an employee or a contractor. It does however describe some of the issues that a court would consider when  determining whether a worker is an employee or a contractor.

There is no definitive method to determine whether a worker is an employee or contractor, and each case will determine on its own facts.

Indicia

Employee

Contractor

Does the hirer have the right to exercise detailed control and direction over the way work is performed and the hours of work?

Is the worker integrated into the hirer’s organisation?

Is the worker required to wear a uniform or display material that associates them with the hirer’s business?

Does the worker supply and maintain his/her own tools or equipment (especially if expensive)?

Is the worker paid according to task completion, rather than receiving payment based on time worked?

Does the worker bear any risk of loss, or have any chance of making a profit from the job?

Is the worker free to work for others at the same time?

Can the worker contract for the work to be done by others?

Is taxation deducted by the hirer from the worker’s pay?

Is the worker responsible for insuring against work related injury they might suffer?

Does the worker receive pay for holidays or sick leave?

Does the contract of hiring describe the worker as a contractor?

Is the work required to be carried out through the personal efforts of the worker only?

In reality is the worker working in your business rather than being “in business for themselves”?

Is the worker generating their own goodwill and would they be able to sell their “business”?